1
EXHIBIT 4.2
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED PURSUANT TO A CONFIDENTIAL
TREATMENT REQUEST FILED WITH THE COMMISSION. ASTERISKS (*) IDENTIFY WHERE SUCH
CONFIDENTIAL INFORMATION HAS BEEN OMITTED. THE OMITTED PORTIONS HAVE BEEN FILED
SEPARATELY WITH THE COMMISSION.
FORM OF
$300,000,000
CREDIT AGREEMENT
among
Affiliated Managers Group, Inc.
The Several Lenders
from Time to Time Parties Hereto
and
The Chase Manhattan Bank,
as Administrative Agent
Dated as of September __, 1997
2
TABLE OF CONTENTS
-----------------
Page
----
SECTION 1. DEFINITIONS...................................................... 1
1.1 Defined Terms....................................................... 1
1.2 Other Definitional Provisions....................................... 17
SECTION 2. AMOUNT AND TERMS OF TERM LOAN COMMITMENTS........................ 17
2.1 Tranche A Term Loans and Tranche B Term Loans....................... 17
2.2 Procedure for Term Loan Borrowing................................... 18
2.3 Repayment of Tranche A Term Loans and Tranche B Term Loans.......... 18
2.4 Evidence of Tranche A Term Loan and Tranche B Term Loan Debt........ 19
SECTION 3. AMOUNT AND TERMS OF REVOLVING CREDIT COMMITMENTS................. 21
3.1 Revolving Credit Commitments........................................ 21
3.2 Procedure for Borrowing............................................. 21
3.3 Commitment Fee...................................................... 21
3.4 Termination or Reduction of Revolving Credit Commitments............ 22
3.5 Repayment of Loans; Evidence of Debt................................ 22
SECTION 4. GENERAL PROVISIONS APPLICABLE TO THE LOANS....................... 23
4.1 Optional Prepayments................................................ 23
4.2 Mandatory Prepayments............................................... 23
4.3 Conversion and Continuation Options................................. 24
4.4 Minimum Amounts and Maximum Number of Tranches...................... 24
4.5 Interest Rates and Payment Dates.................................... 25
4.6 Computation of Interest and Fees.................................... 25
4.7 Inability to Determine Interest Rate................................ 25
4.8 Pro Rata Treatment and Payments..................................... 26
4.9 Illegality.......................................................... 27
4.10 Requirements of Law................................................ 27
4.11 Taxes.............................................................. 28
4.12 Indemnity.......................................................... 29
4.13 Change of Lending Office........................................... 30
SECTION 5. REPRESENTATIONS AND WARRANTIES................................... 30
5.1 Financial Condition................................................. 30
5.2 No Change........................................................... 31
5.3 Corporate Existence; Compliance with Law............................ 31
5.4 Corporate Power; Authorization; Enforceable Obligations............. 31
5.5 No Legal Bar........................................................ 32
5.6 No Material Litigation.............................................. 32
i
3
Page
----
5.7 No Default.......................................................... 32
5.8 Ownership of Property; Liens........................................ 32
5.9 Taxes .............................................................. 32
5.10 Federal Regulations................................................ 32
5.11 ERISA.............................................................. 33
5.12 Investment Company Act............................................. 33
5.13 Investment Advisory Agreements..................................... 33
5.14 Subsidiaries and Other Ownership Interests......................... 34
5.15 Purpose of Loans................................................... 34
5.16 Accuracy and Completeness of Information........................... 34
SECTION 6. CONDITIONS PRECEDENT............................................. 34
6.1 Conditions to Initial Loans......................................... 34
6.2 Conditions to Each Loan............................................. 37
SECTION 7. AFFIRMATIVE COVENANTS............................................ 38
7.1 Financial Statements................................................ 38
7.2 Certificates; Other Information..................................... 38
7.3 Payment of Obligations.............................................. 40
7.4 Conduct of Business and Maintenance of Existence.................... 40
7.5 Maintenance of Property; Insurance.................................. 40
7.6 Inspection of Property; Books and Records; Discussions.............. 40
7.7 Notices............................................................. 40
7.8 Stock Pledges....................................................... 41
7.9 Guarantees.......................................................... 42
SECTION 8. NEGATIVE COVENANTS............................................... 42
8.1 Financial Condition Covenants....................................... 42
8.2 Limitation on Indebtedness.......................................... 43
8.3 Limitation on Liens................................................. 44
8.4 Limitation on Guarantee Obligations................................. 45
8.5 Limitation on Fundamental Changes................................... 45
8.6 Limitation on Sale of Assets........................................ 46
8.7 Limitation on Leases................................................ 46
8.8 Limitation on Dividends............................................. 46
8.9 Limitation on Capital Expenditures.................................. 47
8.10 Limitation on Investments, Loans and Advances...................... 47
8.11 Limitation on Optional Payments and Modifications of Debt
Instruments and Other Documents............................... 48
8.12 Restriction on Amendments to Revenue Sharing Agreements............ 49
8.13 Limitation on Transactions with Affiliates......................... 49
8.14 Limitation on Changes in Fiscal Year............................... 49
ii
4
Page
----
SECTION 9. EVENTS OF DEFAULT................................................ 49
SECTION 10. THE ADMINISTRATIVE AGENT........................................ 52
10.1 Appointment........................................................ 52
10.2 Delegation of Duties............................................... 52
10.3 Exculpatory Provisions............................................. 52
10.4 Reliance by Administrative Agent................................... 52
10.5 Notice of Default.................................................. 53
10.6 Non-Reliance on Administrative Agent and Other Lenders............. 53
10.7 Indemnification.................................................... 54
10.8 Administrative Agent in Its Individual Capacity.................... 54
10.9 Successor Administrative Agent..................................... 54
SECTION 11. MISCELLANEOUS................................................... 55
11.1 Amendments and Waivers............................................. 55
11.2 Notices............................................................ 55
11.3 No Waiver; Cumulative Remedies..................................... 56
11.4 Survival of Representations and Warranties......................... 56
11.5 Payment of Expenses and Taxes...................................... 56
11.6 Successors and Assigns; Participations and Assignments............. 57
11.7 Adjustments; Set-off............................................... 59
11.8 Counterparts....................................................... 60
11.9 Severability....................................................... 60
11.10 Integration....................................................... 60
11.11 GOVERNING LAW..................................................... 60
11.12 Submission To Jurisdiction; Waivers............................... 60
11.13 Acknowledgements.................................................. 61
11.14 WAIVERS OF JURY TRIAL............................................. 61
11.15 Confidentiality................................................... 61
iii
5
ANNEXES
Annex I - Pricing Grid
SCHEDULES
Schedule I - Lender Commitments
Schedule 5.1 - Financial Condition
Schedule 5.9 - Taxes
Schedule 5.14 - Subsidiaries and Other Ownership Interests
Schedule 8.2(g) - Existing Indebtedness
Schedule 8.3(j) - Existing Liens
Schedule 8.10 - Loans to Management
Schedule 8.13 - Transactions with Affiliates
EXHIBITS
Exhibit A-1 - Form of Tranche A Term Note
Exhibit A-2 - Form of Tranche B Term Note
Exhibit A-3 - Form of Revolving Credit Note
Exhibit B-1 - Form of Stock Pledge Agreement
Exhibit B-2 - Form of Partnership Pledge Agreement
Exhibit B-3 - Form of Limited Liability Company Pledge Agreement
Exhibit C - Form of Borrowing Certificate
Exhibit D - Form of Opinion of Borrower's Counsel
Exhibit E - Form of Assignment and Acceptance
Exhibit F - Form of Confidentiality Agreement
Exhibit G - Terms and Conditions of Subordinated Indebtedness
iv
6
CREDIT AGREEMENT, dated as of September __, 1997, among Affiliated
Managers Group, Inc., a Delaware corporation (the "BORROWER"), the several banks
and other financial institutions from time to time parties to this Agreement
(the "LENDERS") and The Chase Manhattan Bank, a New York banking corporation, as
administrative agent for the Lenders hereunder (in such capacity, the
"ADMINISTRATIVE AGENT").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the Borrower intends to acquire (the "TBC ACQUISITION"),
directly or indirectly, a majority interest in Tweedy, Xxxxxx Company L.P. or
its successor and its related entities ("TBC"); and
WHEREAS, the Borrower has acquired, and intends to acquire, directly or
indirectly, majority and other equity interests (together with the TBC
Acquisition, each an "ACQUISITION") in investment management companies (together
with TBC, each as hereinafter further defined, a "MANAGEMENT COMPANY"), and such
Management Companies intend to acquire, directly or indirectly, majority and
other equity interests (each also an "Acquisition") in other investment
management companies (each also a "MANAGEMENT COMPANY"); and
WHEREAS, the Borrower currently has loans outstanding under the existing
$125,000,000 Credit Agreement, dated as of March 6, 1996 among the Borrower, the
several lenders parties thereto and The Chase Manhattan Bank (formerly known as
Chemical Bank), as administrative agent (the "EXISTING FACILITY"); and
WHEREAS, the Borrower has requested loans of up to $300,000,000 on a
term and a revolving basis to refinance the Existing Facility, to finance the
TBC Acquisition and other Acquisitions, to pay the related fees and expenses of
the TBC Acquisition and other Acquisitions, to finance certain additional costs
related to the TBC Acquisition and other Acquisitions and to finance the working
capital and business requirements of the Borrower and its Subsidiaries; and
WHEREAS, the Lenders are willing to make Loans to the Borrower, subject
to the terms and conditions set forth in this Agreement;
NOW, THEREFORE, the parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 DEFINED TERMS. As used in this Agreement, the following terms
shall have the following meanings:
"ABR": for any day, a rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to the greatest of (a) the
Prime Rate in effect on such day,
7
(b) the Base CD Rate in effect on such day plus 1% and (c) the Federal
Funds Effective Rate in effect on such day plus 1/2 of 1%. For purposes
hereof: "PRIME RATE" shall mean the rate of interest per annum publicly
announced from time to time by the Administrative Agent as its prime
rate in effect at its principal office in New York City (the Prime Rate
not being intended to be the lowest rate of interest charged by Chemical
Bank in connection with extensions of credit to debtors); "BASE CD RATE"
shall mean the sum of (a) the product of (i) the Three-Month Secondary
CD Rate and (ii) a fraction, the numerator of which is one and the
denominator of which is one minus the C/D Reserve Percentage and (b) the
C/D Assessment Rate; "THREE- MONTH SECONDARY CD RATE" shall mean, for
any day, the secondary market rate for three-month certificates of
deposit reported as being in effect on such day (or, if such day shall
not be a Business Day, the next preceding Business Day) by the Board of
Governors of the Federal Reserve System (the "BOARD") through the public
information telephone line of the Federal Reserve Bank of New York
(which rate will, under the current practices of the Board, be published
in Federal Reserve Statistical Release H.15(519) during the week
following such day), or, if such rate shall not be so reported on such
day or such next preceding Business Day, the average of the secondary
market quotations for three-month certificates of deposit of major money
center banks in New York City received at approximately 10:00 A.M., New
York City time, on such day (or, if such day shall not be a Business
Day, on the next preceding Business Day) by the Administrative Agent
from three New York City negotiable certificate of deposit dealers of
recognized standing selected by it; and "FEDERAL FUNDS EFFECTIVE RATE"
shall mean, for any day, the weighted average of the rates on overnight
federal funds transactions with members of the Federal Reserve System
arranged by federal funds brokers, as published on the next succeeding
Business Day by the Federal Reserve Bank of New York, or, if such rate
is not so published for any day which is a Business Day, the average of
the quotations for the day of such transactions received by the
Administrative Agent from three federal funds brokers of recognized
standing selected by it. Any change in the ABR due to a change in the
Prime Rate, the Three-Month Secondary CD Rate or the Federal Funds
Effective Rate shall be effective as of the opening of business on the
effective day of such change in the Prime Rate, the Three-Month
Secondary CD Rate or the Federal Funds Effective Rate, respectively.
"ABR LOANS": Loans the rate of interest applicable to which is
based upon the ABR.
"ACQUISITION": as defined in the recitals hereto.
"ADJUSTED EBITDA": as at the end of any fiscal quarter of the
Borrower, the average of the Consolidated EBITDA of the Borrower and its
Subsidiaries (a) for such fiscal quarter (on an annualized (I.E., times
four) and consolidated basis) and (b) for the preceding four fiscal
quarters, in each case after giving effect on a PRO FORMA basis to
Acquisitions completed during such fiscal period.
2
8
"ADJUSTMENT DATE": each date that is the Second Business Day
following receipt by the Administrative Agent of the financial
statements required to be delivered pursuant to subsection 7.1.
"ADMINISTRATIVE AGENT": The Chase Manhattan Bank, together with
its affiliates, as the administrative agent for the Lenders under this
Agreement and the other Loan Documents.
"AFFILIATE": as to any Person, any other Person (other than a
Subsidiary or a Management Company) which, directly or indirectly, is in
control of, is controlled by, or is under common control with, such
Person. For purposes of this definition, "control" of a Person means the
power, directly or indirectly, either to (a) vote 10% or more of the
securities having ordinary voting power for the election of directors of
such Person or (b) direct or cause the direction of the management and
policies of such Person, whether by contract or otherwise.
"AGREEMENT": this Credit Agreement, as amended, supplemented or
otherwise modified from time to time.
"APPLICABLE MARGIN": the rate per annum as adjusted on each
Adjustment Date to the applicable rates per annum set forth on ANNEX I
hereto which corresponds to the ratio of Senior Indebtedness to Adjusted
EBITDA for the four most recent fiscal quarters of the Borrower,
determined from the quarterly financial statements referred to in
subsection 7.1(b) and with respect to fiscal quarters ended prior to
the date hereof, the financial statements heretofore provided to the
Administrative Agent; PROVIDED that in the event that the financial
statements required to be delivered pursuant to subsection 7.1 are not
delivered when due, then
(a) if such financial statements are delivered after the
date required (without giving effect to any applicable cure period) and
the Applicable Margin increases from that previously in effect as a
result of the delivery of such financial statements, then the Applicable
Margin during the period from the date upon which such financial
statements were required to be delivered (without giving effect to any
applicable cure period) until the date upon which they actually are
delivered shall be, except as otherwise provided in clause (c) below,
the Applicable Margin as so increased;
(b) if such financial statements are delivered after the
date required and the Applicable Margin decreases from that previously
in effect as a result of the delivery of such financial statements, then
such decrease in the Applicable Margin shall not become applicable until
the date upon which the financial statements actually are delivered; and
(c) if such financial statements are not delivered prior to
the expiration of the applicable cure period, then, effective upon such
expiration, for the period from the
3
9
date upon which such financial statements were required to be delivered
(after the expiration of the applicable cure period) until two Business
Days following the date upon which they actually are delivered, the
Applicable Margin shall be 2.50%, in the case of Eurodollar Loans, and
1.50%, in the case of ABR Loans (it being understood that the foregoing
shall not limit the rights of the Administrative Agent and the Lenders
set forth in Section 9).
"ASSET SALE": any sale, issuance, conveyance, transfer, lease or
other disposition, including by way of merger, consolidation or sale and
leaseback transaction (any of the foregoing, a "transfer"), directly or
indirectly, in one or a series of related transactions, of (i) all or
substantially all of the properties and assets (other than marketable
securities, including "margin stock" within the meaning of Regulation U,
liquid investments and other financial instruments) of the Borrower or
its Subsidiaries, or (ii) any other properties or assets of the Borrower
or any Subsidiary, other than in the ordinary course of business, to any
Persons other than the Borrower or any of its Subsidiaries. For the
purposes of this definition, the term "Asset Sale" shall not include (a)
any transfer of properties and assets to the extent that the gross
proceeds from the transfer thereof do not exceed (i) $1,000,000 in any
transaction or series of related transactions, taken as a whole, or (ii)
$5,000,000 (irrespective of the size of the individual transactions) in
the aggregate for all such transactions or series of related
transactions on or after the Closing Date, and (b) any transfer of the
Capital Stock of any Management Company or any of the Subsidiaries of
the Borrower to a partner, officer, director, shareholder or member (or
any entity owned or controlled by such Person) of a Management Company
which is a Subsidiary of the Borrower or in which the Borrower or a
Subsidiary has an ownership interest (any such transfer described in
this clause (b), a "SHAREHOLDER ASSET SALE"). In addition, with regard
to a Subsidiary of the Borrower, the term "Asset Sale" shall include
only that portion of the gross proceeds to such Subsidiary from the
transfer thereof representing the percentage of such proceeds equal to
the percentage of the Borrower's ownership interest in such Subsidiary.
"ASSIGNEE": as defined in subsection 11.6(c).
"AVAILABLE REVOLVING CREDIT COMMITMENT": as to any Revolving
Credit Lender at any time, an amount equal to the excess, if any, of (a)
the amount of such Revolving Credit Lender's Revolving Credit Commitment
over (b) the aggregate principal amount of all Revolving Credit Loans
made by such Revolving Credit Lender then outstanding.
"BORROWING DATE": any Business Day specified in a notice
pursuant to subsection 2.2 or 3.2 as a date on which the Borrower
requests the Lenders to make Loans hereunder.
4
10
"BUSINESS DAY": a day other than a Saturday, Sunday or other day
on which commercial banks in New York City are authorized or required by
law to close.
"CAPITAL STOCK": any and all shares, interests, participations
or other equivalents (however designated) of capital stock of a
corporation, any and all equivalent ownership interests in a Person
(other than a corporation) and any and all warrants or options to
purchase any of the foregoing.
"C/D ASSESSMENT RATE": for any day as applied to any ABR Loan
based upon the Base CD Rate the annual assessment rate in effect on such
day which is payable by a member of the Bank Insurance Fund maintained
by the Federal Deposit Insurance Corporation (the "FDIC") classified as
well-capitalized and within supervisory subgroup "B" (or a comparable
successor assessment risk classification) within the meaning of 12
C.F.R. ss. 327.4 (or any successor provision) to the FDIC (or any
successor) for the FDIC's (or such successor's) insuring time deposits
at offices of such institution in the United States.
"C/D RESERVE PERCENTAGE": for any day as applied to any ABR Loan
based on the Base CD Rate, that percentage (expressed as a decimal)
which is in effect on such day, as prescribed by the Board of Governors
of the Federal Reserve System (or any successor) (the "BOARD"), for
determining the maximum reserve requirement for a Depositary Institution
(as defined in Regulation D of the Board) in respect of new non-personal
time deposits in Dollars having a maturity of 30 days or more.
"CHANGE OF CONTROL": the occurrence of any of the following
events: (i) any Person or "group" (within the meaning of Section 13(d)
or 14(d) of the Securities Exchange Act of 1934, as amended) other than
TA Associates, Inc. (and entities associated therewith) shall have
acquired beneficial ownership of Capital Stock having 50% or more of the
ordinary voting power in the election of directors of the Borrower or
(ii) TA Associates, Inc. (and entities associated therewith) shall cease
to own beneficially and of record at least 50% of the issued and
outstanding Capital Stock of the Borrower controlled by them
collectively as of the Closing Date (x) other than as a result of a
distribution to the investors in TA Associates, Inc. (and the entities
associated therewith) after consummation of an Initial Public Offering,
(y) other than as a direct result of or in connection with an Initial
Public Offering and (z) other than after an Initial Public Offering.
"CHASE": The Chase Manhattan Bank, a New York banking
corporation.
"CLOSING DATE": the date on which the conditions precedent set
forth in subsection 6.1 shall be satisfied.
"CODE": the Internal Revenue Code of 1986, as amended from time
to time.
5
11
"COLLATERAL": as defined in the Stock Pledge Agreement.
"COMMITMENT": with respect to any Lender, the collective
reference to such Lender's Tranche A Term Loan Commitment, Tranche B
Term Loan Commitment and/or Revolving Credit Commitment; collectively,
as to all the Lenders, the "COMMITMENTS".
"COMMITMENT PERCENTAGE": as to any Lender at any time, the
percentage which (i) the sum of (a) such Lender's then Available
Revolving Credit Commitment and other unused Commitments (other than
Revolving Credit Commitments) PLUS (b) such Lender's Loans then
outstanding then constitutes of (ii) the sum of (x) the aggregate
Available Revolving Credit Commitments of the Revolving Credit Lenders
and the other unused Commitments of all the Lenders (other than
Revolving Credit Commitments) PLUS (y) the aggregate principal amount of
Loans of all the Lenders then outstanding.
"COMMONLY CONTROLLED ENTITY": an entity, whether or not
incorporated, which is under common control with the Borrower within the
meaning of Section 4001 of ERISA or is part of a group which includes
the Borrower and which is treated as a single employer under Section 414
of the Code.
"CONSOLIDATED EBITDA": for any fiscal period the consolidated
EBITDA of the Borrower and its Subsidiaries for such period, in each
case after giving effect on a PRO FORMA basis to Acquisitions completed
during such fiscal period.
"CONSOLIDATED INTEREST EXPENSE": for any period, the amount of
interest expense, both expensed and capitalized, of the Borrower and, to
the extent payable out of Free Cash Flow (and not Operating Cash Flow)
under the relevant Revenue Sharing Agreement, its Subsidiaries on a
consolidated basis, net of the portion thereof attributable to minority
interests, for such period, as determined in accordance with GAAP.
"CONSOLIDATED NET INCOME" (or "CONSOLIDATED NET LOSS"): for any
fiscal period, consolidated net income (or loss) by the Borrower and its
Subsidiaries for such fiscal period, determined in accordance with GAAP.
"CONSOLIDATED NET WORTH": as at any date, all amounts included
under shareholders' equity on a consolidated balance sheet of the
Borrower and its Subsidiaries as at such date, as determined on a
consolidated basis in accordance with GAAP and any Subordinated
Indebtedness; PROVIDED that such Subordinated Indebtedness shall have no
scheduled payments of interest prior to [the date which is seven years
after the Closing Date] (other than payments of interest which may, at
the option of the Borrower, be made by increasing the principal and
other than payments of interest with respect to the Senior Subordinated
Contingent Payment Notes).
6
12
"CONTRACTUAL OBLIGATION": as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"CONVERTIBLE PREFERRED STOCK": as defined in subsection 6.1(n).
"DEFAULT": any of the events specified in Section 9, whether or
not any requirement for the giving of notice, the lapse of time, or
both, has been satisfied.
"DOLLARS" and "$": dollars in lawful currency of the United
States of America.
"EBITDA": for any Person for any period, the sum (without
duplication) of the amount for such Person for such period of (a) its
net income before taxes, (b) its interest expense (including capitalized
interest expense), (c) its depreciation expense, (d) its amortization
expense and (e) its Non-Cash Based Compensation Costs, in each case as
determined in accordance with GAAP.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"EUROCURRENCY RESERVE REQUIREMENTS": for any day as applied to a
Eurodollar Loan, the aggregate (without duplication) of the rates
(expressed as a decimal fraction) of reserve requirements in effect on
such day (including, without limitation, basic, supplemental, marginal
and emergency reserves under any regulations of the Board of Governors
of the Federal Reserve System or other Governmental Authority having
jurisdiction with respect thereto) dealing with reserve requirements
prescribed for eurocurrency funding (currently referred to as
"Eurocurrency Liabilities" in Regulation D of such Board) maintained by
a member bank of such System.
"EURODOLLAR BASE RATE": with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, the rate per annum
equal to the rate offered by Chase for Dollar deposits at or about 10:00
A.M., New York City time, two Business Days prior to the beginning of
such Interest Period in the interbank eurodollar market where the
eurodollar and foreign currency and exchange operations in respect of
its Eurodollar Loans are then being conducted for delivery on the first
day of such Interest Period for the number of days comprised therein and
in an amount comparable to the amount of its Eurodollar Loan to be
outstanding during such Interest Period.
"EURODOLLAR LOANS": Loans the rate of interest applicable to
which is based upon the Eurodollar Rate.
7
13
"EURODOLLAR RATE": with respect to each day during each Interest
Period pertaining to a Eurodollar Loan, a rate per annum determined for
such day in accordance with the following formula (rounded upward to the
nearest 1/100th of 1%):
EURODOLLAR BASE RATE
----------------------------------------
1.00 - Eurocurrency Reserve Requirements
"EVENT OF DEFAULT": any of the events specified in Section 9,
PROVIDED that any requirement for the giving of notice, the lapse of
time, or both, or any other condition, has been satisfied.
"EXISTING AGREEMENT": the $125,000,000 Credit Agreement, dated
as of March 6, 1996, among AMG, the several lenders parties thereto and
The Chase Manhattan Bank (formerly known as Chemical Bank), as agent.
"FINANCING LEASE": any lease of property, real or personal, the
obligations of the lessee in respect of which are required in accordance
with GAAP to be capitalized on a balance sheet of the lessee.
"FREE CASH FLOW": as defined in the relevant Revenue Sharing
Agreement.
"FUNDS": the collective reference to all Investment Companies
and other investment accounts or funds (in whatever form and whether
personal or corporate) for which the Borrower or any of its Subsidiaries
or Management Companies provides advisory, management or administrative
services.
"GAAP": generally accepted accounting principles in the United
States of America in effect from time to time.
"GOVERNMENTAL AUTHORITY": any nation or government, any state or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"GUARANTEE OBLIGATION": as to any Person (the "GUARANTEEING
PERSON"), any obligation of (a) the guaranteeing person or (b) another
Person (including, without limitation, any bank under any letter of
credit) to induce the creation of which the guaranteeing person has
issued a reimbursement, counterindemnity or similar obligation, in
either case guaranteeing or in effect guaranteeing any Indebtedness,
leases, dividends or other obligations (the "PRIMARY OBLIGATIONS") of
any other third Person (the "PRIMARY OBLIGOR") in any manner, whether
directly or indirectly, including, without limitation, any obligation of
the guaranteeing person, whether or not contingent, (i) to purchase any
such primary obligation or any property constituting direct or indirect
security therefor, (ii) to advance or supply funds (1) for
8
14
the purchase or payment of any such primary obligation or (2) to
maintain working capital or equity capital of the primary obligor or
otherwise to maintain the net worth or solvency of the primary obligor,
(iii) to purchase property, securities or services primarily for the
purpose of assuring the owner of any such primary obligation of the
ability of the primary obligor to make payment of such primary
obligation or (iv) otherwise to assure or hold harmless the owner of any
such primary obligation against loss in respect thereof; PROVIDED,
HOWEVER, that the term Guarantee Obligation shall not include
endorsements of instruments for deposit or collection in the ordinary
course of business. The amount of any Guarantee Obligation of any
guaranteeing person shall be deemed to be the lower of (a) an amount
equal to the stated or determinable amount of the primary obligation in
respect of which such Guarantee Obligation is made and (b) the maximum
amount for which such guaranteeing person may be liable pursuant to the
terms of the instrument embodying such Guarantee Obligation, unless such
primary obligation and the maximum amount for which such guaranteeing
person may be liable are not stated or determinable, in which case the
amount of such Guarantee Obligation shall be such guaranteeing person's
maximum reasonably anticipated liability in respect thereof as
determined by the Borrower in good faith.
"INITIAL PUBLIC OFFERING": any initial public offering of common
(or other voting) stock of the Borrower.
"INDEBTEDNESS": of any Person at any date and without
duplication, (a) all indebtedness of such Person for borrowed money or
for the deferred purchase price of property or services (other than
current trade liabilities incurred in the ordinary course of business
and payable in accordance with customary practices), (b) any other
indebtedness of such Person which is evidenced by a note, bond,
debenture or similar instrument, (c) all obligations of such Person
under Financing Leases, (d) all obligations of such Person in respect of
acceptances issued or created for the account of such Person, (e) all
obligations of such Person under noncompetition agreements reflected as
liabilities on a balance sheet of such Person in accordance with GAAP,
(f) all liabilities secured by any Lien on any property owned by such
Person even though such Person has not assumed or otherwise become
liable for the payment thereof, and (g) all net obligations of such
Person under interest rate, commodity, foreign currency and financial
markets swaps, options, futures and other hedging obligations (valued,
at such date, in accordance with the Borrower's customary practices, as
approved by its independent certified public accountants). For purposes
of the foregoing definition, with regard to a Subsidiary of the
Borrower, the term "Indebtedness" shall include only that portion of its
Indebtedness representing the percentage of its Indebtedness equal to
the percentage of the Borrower's ownership interest in such Subsidiary.
"INSOLVENCY": with respect to any Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of Section 4245
of ERISA.
9
15
"INSOLVENT": pertaining to a condition of Insolvency.
"INTEREST PAYMENT DATE": (a) as to any ABR Loan, the last day of
each March, June, September and December to occur while such Loan is
outstanding, (b) as to any Eurodollar Loan having an Interest Period of
three months or less, the last day of such Interest Period, and (c) as
to any Eurodollar Loan having an Interest Period longer than three
months, each day which is three months or a whole multiple thereof,
after the first day of such Interest Period and the last day of such
Interest Period.
"INTEREST PERIOD": with respect to any Eurodollar Loan:
(i) initially, the period commencing on the
borrowing or conversion date, as the case may be, with respect
to such Eurodollar Loan and ending one, two, three or six months
thereafter, as selected by the Borrower in its notice of
borrowing or notice of conversion, as the case may be, given
with respect thereto; and
(ii) thereafter, each period commencing on
the last day of the next preceding Interest Period applicable to
such Eurodollar Loan and ending one, two, three or six months
thereafter, as selected by the Borrower by irrevocable notice to
the Administrative Agent not less than three Business Days prior
to the last day of the then current Interest Period with respect
thereto;
PROVIDED that, the foregoing provisions relating to Interest Periods are
subject to the following:
(1) if any Interest Period pertaining to a
Eurodollar Loan would otherwise end on a day that is not a
Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless the result of such extension
would be to carry such Interest Period into another calendar
month in which event such Interest Period shall end on the
immediately preceding Business Day;
(2) no Interest Period that would otherwise extend
beyond the Termination Date in the case of Revolving Credit
Loans or Tranche A Term Loans, or beyond the Tranche B Term Loan
Termination Date, in the case of the Tranche B Term Loans, shall
be selected by the Borrower; and
(3) any Interest Period pertaining to a Eurodollar
Loan that begins on the last Business Day of a calendar month
(or on a day for which there is no numerically corresponding day
in the calendar month at the end of such Interest Period) shall
end on the last Business Day of a calendar month.
10
16
"INVESTMENT ADVISERS ACT": the Investment Advisers Act of 1940,
and the rules and regulations promulgated thereunder, as such may be
amended from time to time.
"INVESTMENT COMPANY": an "investment company" as such term is
defined in the Investment Company Act.
"INVESTMENT COMPANY ACT": the Investment Company Act of 1940,
and the rules and regulations promulgated thereunder, as such may be
amended from time to time.
"LIEN": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or other
security interest or any preference, priority or other security
agreement or preferential arrangement of any kind or nature whatsoever
(including, without limitation, any conditional sale or other title
retention agreement and any Financing Lease having substantially the
same economic effect as any of the foregoing).
"LLC PLEDGE AGREEMENT": the Limited Liability Pledge Agreement
to be executed and delivered by the Borrower, substantially in the form
of Exhibit B-3, as the same may be amended, supplemented or otherwise
modified from time to time (including as supplemented by the execution
and delivery of any Pledge Agreement Supplement in the form of Annex I
to said Exhibit B-3 (a "Pledge Agreement Supplement")).
"LOAN": any Tranche A Term Loan, Tranche B Term Loan or
Revolving Credit Loan; collectively, the "LOANS".
"LOAN DOCUMENTS": this Agreement, any Notes, and the Pledge
Agreements.
"MANAGEMENT COMPANY": any Subsidiary or other Person engaged,
directly or indirectly, primarily in the business of providing
investment advisory, management, distribution or administrative services
to Funds (or investment accounts or funds which will be included as
Funds after the Borrower acquires an interest in such other Person) and
in which the Borrower, directly or indirectly, has purchased or
otherwise acquired, or has entered into an agreement to purchase or
otherwise acquire, Capital Stock or other interests, entitling the
Borrower, directly or indirectly, to a share of the revenues, earnings
or value thereof.
"MATERIAL ADVERSE EFFECT": a material adverse effect on (a) the
business, operations, property or condition (financial or otherwise) of
each of (i) the Borrower and its Subsidiaries (after giving effect to
the TBC Acquisition) taken as a whole and (ii) TBC, (b) the ability of
the Borrower after the TBC Acquisition to perform its obligations under
the Loan Documents or (c) the validity or enforceability of this or
11
17
any of the other Loan Documents or the rights or remedies of the
Administrative Agent or the Lenders hereunder or thereunder.
"MULTIEMPLOYER PLAN": a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"NET PROCEEDS": with respect to any Asset Sale the net amount
equal to the aggregate amount received in cash (including any cash
received by way of deferred payment pursuant to a note receivable, other
non-cash consideration or otherwise, but only as and when such cash is
so received) in connection with such Asset Sale MINUS the sum of (a) the
reasonable fees, commissions and other out-of-pocket expenses incurred
by the Borrower or any of its Subsidiaries, as applicable, in connection
with such Asset Sale (other than amounts payable to Affiliates of the
Person making such disposition) and (b) federal, state and local taxes
incurred in connection with such Asset Sale, whether or not payable at
such time.
"NON-CASH BASED COMPENSATION COSTS": for any period, the amount
of non- cash expense or costs computed under XXX Xx. 00 and related
interpretations or FAS 123 and related interpretations, which relate to
the issuance of interests in any Subsidiary or Management Company.
"NON-EXCLUDED TAXES": as defined in subsection 4.11.
"NOTES": collectively, the Revolving Credit Notes, Tranche A
Term Notes and Tranche B Term Notes, if any.
"OPERATING CASH FLOW": as defined in the relevant Revenue
Sharing Agreement.
"PARTICIPANT": as defined in subsection 11.6(b).
"PARTNERSHIP PLEDGE AGREEMENT": the Partnership Pledge Agreement
to be executed and delivered by the Borrower, substantially in the form
of Exhibit B-2, as the same may be amended, supplemented or otherwise
modified from time to time (including as supplemented by the execution
and delivery of any Pledge Agreement Supplement in the form of Annex I
to said Exhibit B-2 (a "PLEDGE AGREEMENT SUPPLEMENT")).
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA.
"PERSON": an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust,
unincorporated association, joint venture, Governmental Authority or
other entity of whatever nature.
12
18
"PLAN": at a particular time, any employee benefit plan which is
covered by ERISA and in respect of which the Parent or a Commonly
Controlled Entity is (or, if such plan were terminated at such time,
would under Section 4069 of ERISA be deemed to be) an "employer" as
defined in Section 3(5) of ERISA.
"PLEDGE AGREEMENTS": the collective reference to the Partnership
Pledge Agreement, the LLC Pledge Agreement and the Stock Pledge
Agreement.
"PLEDGED COLLATERAL": as defined in the Partnership Pledge
Agreement and the LLC Pledge Agreement.
"REGISTER": as defined in subsection 11.6(d).
"REGULATION U": Regulation U of the Board of Governors of the
Federal Reserve System as in effect from time to time.
"REORGANIZATION": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of
Section 4241 of ERISA.
"REPORTABLE EVENT": any of the events set forth in Section
4043(b) of ERISA, other than those events as to which the thirty day
notice period is waived under subsections .13, .14, .16, .18, .19 or .20
of PBGC Reg. ss.2615.
"REQUIRED LENDERS": at any time, Lenders the Commitment
Percentages of which aggregate at least 51%.
"REQUIREMENT OF LAW": as to any Person, any law, treaty, rule or
regulation or determination of an arbitrator or a court or other
Governmental Authority, in each case applicable to or binding upon such
Person or any of its property or to which such Person or any of its
property is subject.
"RESPONSIBLE OFFICER": the chief executive officer, the
president and the executive vice president of the Borrower or, with
respect to financial matters, the senior financial officer of the
Borrower.
"REVENUE SHARING AGREEMENT": each agreement entered into by the
Borrower or a Subsidiary with a Management Company pursuant to which a
specified percentage of the adjusted gross revenues of the partnership
or limited liability company or other similar entity organized under
such agreement or the Person to which such agreement relates is deemed
Free Cash Flow to be distributed among partners, shareholders or members
of such Management Company, PRO RATA, in accordance with such partners',
shareholders' or members' ownership percentages, or any similar other
agreement providing for the distribution of income, revenues or assets
of a Management Company.
13
19
"REVOLVING CREDIT COMMITMENT": as to any Revolving Credit
Lender, the obligation of such Lender to make Revolving Credit Loans to
the Borrower hereunder in an aggregate principal amount at any one time
outstanding not to exceed the amount set forth opposite such Lender's
name on Schedule I under the heading "Revolving Credit Commitment", as
such amount may be reduced from time to time in accordance with the
provisions of this Agreement.
"REVOLVING CREDIT COMMITMENT PERCENTAGE": as to any Revolving
Credit Lender at any time, the percentage which such Lender's Revolving
Credit Commitment then constitutes of the aggregate Revolving Credit
Commitments (or, at any time after the Revolving Credit Commitments
shall have expired or terminated, the percentage which the aggregate
principal amount of such Lender's Revolving Credit Loans then
outstanding constitutes of the aggregate principal amount of the
Revolving Credit Loans then outstanding).
"REVOLVING CREDIT COMMITMENT PERIOD": the period from and
including the date hereof to but not including the Termination Date or
such earlier date on which the Revolving Credit Commitments shall
terminate as provided herein.
"REVOLVING CREDIT LENDER": any Lender with an unused Revolving
Credit Commitment hereunder and/or any Revolving Credit Loans
outstanding hereunder; collectively, the "REVOLVING CREDIT LENDERS".
"REVOLVING CREDIT LOANS": as defined in subsection 3.1(a).
"REVOLVING CREDIT NOTE": as defined in subsection 3.5(e).
"SECURITIES ACTS": The Securities Act of 1933 and the Securities
Exchange Act of 1934, and the rules and regulations promulgated
thereunder, in each case as such may be amended from time to time.
"SENIOR INDEBTEDNESS": at any time, Total Indebtedness minus
Subordinated Indebtedness.
"SENIOR SUBORDINATED CREDIT AGREEMENT": the Securities Purchase
Agreement dated as of August 15, 1997, as amended, modified or otherwise
supplemented from time to time in accordance with subsection 8.11 among
the Borrower, and the purchasers listed therein.
"SENIOR SUBORDINATED FACILITY DOCUMENTS": the collective
reference to the Senior Subordinated Credit Agreement, the notes issued
pursuant thereto, and each of the other instruments and documents
executed and delivered pursuant to any of the foregoing (but excluding,
for the avoidance of doubt, the Senior Subordinated
14
20
Indenture, the Senior Subordinated Notes and each of the other
instruments and documents executed and delivered pursuant to any of the
foregoing).
"SENIOR SUBORDINATED INDENTURE": either of the following, in
each case as amended, waived, supplemented or otherwise modified from
time to time in accordance with subsection 8.11: (a) if and when entered
into, the Senior Subordinated Indenture, substantially in the form of
Exhibit D attached to the Senior Subordinated Credit Agreement (with
such changes therein as the Administrative Agent and the Borrower shall
approve), if and when executed and delivered by the Borrower and a
trustee thereunder, relating to the Exchange Notes (as defined in the
Senior Subordinated Credit Agreement) or (b) in the event that the
Indebtedness under the Senior Subordinated Credit Agreement is
refinanced as contemplated thereby, the indenture or credit agreement
under which such refinancing Indebtedness is issued and outstanding.
"SENIOR SUBORDINATED LOANS": Indebtedness of the Borrower under
the Senior Subordinated Facility Documents and the Senior Subordinated
Notes Documents.
"SENIOR SUBORDINATED NOTES": the notes issued under the Senior
Subordinated Indenture.
"SENIOR SUBORDINATED NOTES DOCUMENTS": the collective reference
to the Senior Subordinated Notes and the Senior Subordinated Indenture
and each of the other instruments and documents executed and delivered
pursuant to any of the foregoing, as the same may be amended,
supplemented, waived or otherwise modified from time to time in
accordance with subsection 8.11 to the extent applicable; individually a
"SENIOR SUBORDINATED NOTE DOCUMENT."
"SINGLE EMPLOYER PLAN": any Plan which is covered by Title IV of
ERISA, but which is not a Multiemployer Plan.
"STOCK PLEDGE AGREEMENT": the Stock Pledge Agreement to be
executed and delivered by the Borrower, substantially in the form of
Exhibit B-1, as the same may be amended, supplemented or otherwise
modified from time to time (including as supplemented by the execution
and delivery of any Pledge Agreement Supplement in the form of Annex I
to said Exhibit B-1 (a "PLEDGE AGREEMENT SUPPLEMENT")).
"SUBORDINATED CONTINGENT PAYMENT NOTES": the collective
reference to (i) the Subordinated Contingent Payment Notes issued by the
Borrower pursuant to the Partnership Interest Purchase Agreement dated
March 8, 1995 among the Borrower, Systematic Financial Management, Inc.,
Cash Flow Investors, Inc., Systematic Financial Management, L.P. and
certain stockholders of Systematic Financial Management, Inc., (ii) the
Subordinated Deferred Payment Note issued by the
15
21
Borrower on November 9, 1995 pursuant to the Partnership Interest
Purchase Agreement dated August 11,1995 among the Borrower, Renaissance
Investment Management, Inc., Descartes, Inc., Renaissance Investment
Management, the stockholders of Renaissance Investment Management and
certain stockholders of Descartes, Inc., (iii) the Subordinated
Contingent Payment Notes issued by the Borrower pursuant to the Stock
Purchase and Contribution Agreement, dated October 11, 1996, among the
Borrower, The Burridge Group Inc. and the stockholders of The Burridge
Group Inc. and (iv) the Subordinated Contingent Payment Notes issued by
the Borrower pursuant to the Limited Liability Company Interest Purchase
Agreement, dated March 5, 1997, among the Borrower, Gofen and Glossberg,
Inc., Gofen and Glossberg, L.L.C. and the stockholders of Gofen and
Glossberg, Inc.
"SUBORDINATED INDEBTEDNESS": (a) the Indebtedness of the
Borrower under the Subordinated Contingent Payment Notes, (b) the Senior
Subordinated Loans and (c) any other unsecured Indebtedness of the
Borrower (i) for which the Borrower is directly or primarily liable and
in respect of which none of the Subsidiaries of the Borrower is
contingently or otherwise obligated, (ii) the payment of the principal
of and interest on which and other obligations of the Borrower in
respect of which are subordinated to the prior payment in full of the
principal of and interest (including post-petition interest whether or
not allowed as a claim in any proceeding) on the Loans and all other
obligations and liabilities of the Borrower to the Administrative Agent
and the Lenders hereunder, and (iii) which are generally consistent with
terms and conditions set forth in Exhibit G hereof (with any variations
to such terms and conditions being subject to approval by the
Administrative Agent) or otherwise satisfactory in form and substance to
the Required Lenders.
"SUBSIDIARY": as to any Person, a corporation, partnership,
limited liability company or other entity of which Capital Stock having
ordinary voting power (other than Capital Stock having such power only
by reason of the happening of a contingency) to elect a majority of the
board of directors or other managers of such corporation, partnership,
limited liability company or other entity are at the time owned, or the
management of which is otherwise controlled, directly or indirectly
through one or more intermediaries, or both, by such Person. Unless
otherwise qualified, all references to a "Subsidiary" or to
"Subsidiaries" in this Agreement shall refer to a Subsidiary or
Subsidiaries of the Borrower.
"TBC": as defined in the recitals thereto.
"TBC ACQUISITION": as defined in the recitals hereto.
"TERM LOAN LENDER": any Lender with an unused Term Loan
Commitment hereunder and/or any Term Loans outstanding hereunder;
collectively, the "TERM LOAN LENDERS".
16
22
"TERM LOANS": the collective reference to the Tranche A Term
Loans and the Tranche B Term Loans.
"TERM NOTE": as defined in subsection 2.4(d); collectively, the
"TERM NOTES".
"TERMINATION DATE": the date which is seven years after the
Closing Date or such earlier date when the Revolving Credit Commitments
hereunder are terminated.
"TOTAL INDEBTEDNESS": at any time, the aggregate principal
amount (including capitalized interest) of all Indebtedness of the
Borrower and its Subsidiaries (including without limitation, pursuant to
the Loans, purchase money obligations and amounts payable under
noncompetition agreements) reflected as liabilities on the consolidated
balance sheet of the Borrower and its Subsidiaries.
"TRANCHE": the collective reference to Eurodollar Loans having
Interest Periods that began or will begin on the same date and end on
the same later date (whether or not such Loans shall originally have
been made on the same day).
"TRANCHE A TERM LOAN": as defined in subsection 2.1(a);
collectively, the "TRANCHE A TERM LOANS".
"TRANCHE A TERM LOAN COMMITMENT": as to any Tranche A Term Loan
Lender, its obligation to make a Tranche A Term Loan to the Borrower in
an amount equal to the amount set forth opposite such Tranche A Term
Loan Lender's name in Schedule I under the heading "Tranche A Term Loan
Commitment", as such amount may be reduced from time to time pursuant to
this Agreement or as such amount may be adjusted from time to time
pursuant to subsection 11.6; collectively, as to all such Tranche A Term
Loan Lenders, the "TRANCHE A TERM LOAN COMMITMENTS".
"TRANCHE A TERM LOAN COMMITMENT PERCENTAGE": as to any Tranche A
Term Loan Lender at any time, the percentage of the aggregate Tranche A
Term Loan Commitments then constituted by such Tranche A Term Loan
Lender's Tranche A Term Loan Commitments (or, after the Tranche A Term
Loans have been made, the percentage of the aggregate Tranche A Term
Loans then constituted by such Tranche A Term Loan Lender's Tranche A
Term Loans).
"TRANCHE A TERM LOAN LENDER": any Lender with an unused Tranche
A Term Loan Commitment hereunder and/or any Tranche A Term Loans
outstanding hereunder; collectively, the "TRANCHE A TERM LOAN LENDERS".
"TRANCHE A TERM LOAN TERMINATION DATE": the date which is seven
years after the Closing Date or, if such date is not a Business Day, the
Business Day next preceding such date.
17
23
"TRANCHE A TERM NOTE": as defined in subsection 2.4(d);
collectively, the "TRANCHE A TERM NOTES".
"TRANCHE B TERM LOAN": as defined in subsection 2.1(b);
collectively, the "TRANCHE B TERM LOANS".
"TRANCHE B TERM LOAN COMMITMENT": as to any Tranche B Term Loan
Lender, its obligation to make a Tranche B Term Loan to the Borrower in
an amount equal to the amount set forth opposite such Lender's name in
Schedule I under the heading "Tranche B Term Loan Commitment", as such
amount may be reduced from time to time pursuant to this Agreement or as
such amount may be adjusted from time to time pursuant to subsection
11.6; collectively, as to all such Tranche B Term Loan Lenders, the
"TRANCHE B TERM LOAN COMMITMENTS".
"TRANCHE B TERM LOAN COMMITMENT PERCENTAGE": as to any Tranche B
Term Loan Lender at any time, the percentage of the aggregate Tranche B
Term Loan Commitments then constituted by such Tranche B Term Loan
Lender's Tranche B Term Loan Commitments (or, after the Tranche B Term
Loans are made, the percentage of the aggregate Tranche B Term Loans
then constituted by such Tranche B Term Loan Lender's Tranche B Term
Loans).
"TRANCHE B TERM LOAN LENDER": any Lender with an unused Tranche
B Term Loan Commitment hereunder and/or any Tranche B Term Loans
outstanding hereunder; collectively, the "TRANCHE B TERM LOAN LENDERS".
"TRANCHE B TERM LOAN TERMINATION DATE": the date which is eight
years after the Closing Date or, if such date is not a Business Day, the
Business Day next preceding such date.
"TRANCHE B TERM NOTE": as defined in subsection 2.4(d);
collectively, the "TRANCHE B TERM NOTES".
"TRANSFEREE": as defined in subsection 11.6(f).
"TYPE": as to any Loan, its nature as an ABR Loan or a
Eurodollar Loan.
1.2 OTHER DEFINITIONAL PROVISIONS. (a) Unless otherwise
specified therein, all terms defined in this Agreement shall have the defined
meanings when used in any Notes or any certificate or other document made or
delivered pursuant hereto.
(b) As used herein and in any Notes, and any certificate or
other document made or delivered pursuant hereto, accounting terms relating to
the Borrower and its Subsidiaries not defined in subsection 1.1 and accounting
terms partly defined in subsection 1.1, to the extent not defined, shall have
the respective meanings given to them under GAAP.
18
24
(c) The words "hereof", "herein" and "hereunder" and words
of similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section,
subsection, Schedule and Exhibit references are to this Agreement unless
otherwise specified.
(d) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
SECTION 2. AMOUNT AND TERMS OF TERM LOAN COMMITMENTS
2.1 TRANCHE A TERM LOANS AND TRANCHE B TERM LOANS. (a)
Subject to the terms and conditions hereof, each Tranche A Term Loan Lender
severally agrees to make a term loan (a "TRANCHE A TERM LOAN"; collectively, the
"TRANCHE A TERM LOANS") to the Borrower on the Closing Date in an amount equal
to the amount of the Tranche A Term Loan Commitment of such Tranche A Term Loan
Lender then in effect.
(b) Subject to the terms and conditions hereof, each Tranche
B Term Loan Lender severally agrees to make a term loan (a "TRANCHE B TERM
LOAN"; collectively, the "TRANCHE B TERM LOANS", and together with the Tranche A
Term Loans, the "TERM LOANS") to the Borrower on the Closing Date in an amount
equal to the amount of the Tranche B Term Loan Commitment of such Tranche B Term
Loan Lender then in effect.
(c) The Tranche A Term Loans and Tranche B Term Loans may
from time to time be (i) Eurodollar Loans, (ii) ABR Loans or (iii) a combination
thereof, as determined by the Borrower and notified to the Administrative Agent
in accordance with subsections 2.2 and 4.3.
2.2 PROCEDURE FOR TERM LOAN BORROWING. The Borrower hereby
requests (i) a Tranche A Term Loan borrowing on the Closing Date in an amount
equal to the aggregate amount of the Tranche A Term Loan Commitments of the
Tranche A Term Loan Lenders and (ii) a Tranche B Term Loan borrowing on the
Closing Date in an amount equal to the aggregate amount of the Tranche B Term
Loan Commitments of the Tranche B Term Loan Lenders. The Tranche A Term Loans
and Tranche B Term Loans made on the Closing Date shall initially be ABR Loans.
Each Tranche A Term Loan Lender and Tranche B Term Loan Lender will make the
amount of its PRO RATA share of the Tranche A Term Loans and Tranche B Term
Loans, as the case may be, available to the Administrative Agent for the account
of the Borrower at the office of the Administrative Agent specified in
subsection 11.2 prior to 10:00 A.M., New York City time, on the Closing Date in
Dollars and in funds immediately available to the Administrative Agent. The
Administrative Agent shall credit the account of the Borrower by 11:00 A.M., New
York City time, on the Closing Date, on the books of such office of the
Administrative Agent or such other account as specified by the Borrower with the
aggregate of the amounts made available to the Administrative Agent by the
Tranche A Term
19
25
Loan Lenders and Tranche B Term Loan Lenders and in like funds as received by
the Administrative Agent.
2.3 REPAYMENT OF TRANCHE A TERM LOANS AND TRANCHE B TERM
LOANS. (a) The Borrower hereby unconditionally promises to pay to the
Administrative Agent for the account of each Tranche A Term Loan Lender the
principal amount of the Tranche A Term Loans made by such Tranche A Term Loan
Lender in fourteen consecutive semi-annual installments, payable on the first
day of May and November of each calendar year commencing May 1, 1998 (or such
earlier date on which the Tranche A Term Loans become due and payable pursuant
to Section 9), each of which installments on any such date shall be in an amount
equal to such Tranche A Term Loan Lender's Tranche A Term Loan Commitment
Percentage of the amount set forth below opposite such installment, PROVIDED
that the final installment of the Tranche A Term Loans shall be payable on the
Termination Date:
INSTALLMENT PRINCIPAL AMOUNT
----------- ----------------
May 1, 1998 $2,500,000
November 1, 1998 $2,500,000
May 1, 1999 $2,500,000
November 1, 1999 $2,500,000
May 1, 2000 $2,500,000
November 1, 2000 $2,500,000
May 1, 2001 $2,500,000
November 1, 2001 $2,500,000
May 1, 2002 $5,000,000
November 1, 2002 $5,000,000
May 1, 2003 $5,000,000
November 1, 2003 $5,000,000
May 1, 2004 $5,000,000
September [__], 2004 $5,000,000.
The Borrower hereby further agrees to pay to the Administrative Agent for the
account of each Tranche A Term Loan Lender interest on the unpaid principal
amount of the Tranche A Term Loans from time to time outstanding from the
Closing Date until payment in full thereof at the rates per annum, and on the
dates, set forth in subsection 4.5.
(b) The Borrower hereby unconditionally promises to pay to
the Administrative Agent for the account of each Tranche B Term Loan Lender the
principal amount of the Tranche B Term Loans made by such Tranche B Term Loan
Lender in sixteen consecutive semi-annual installments, payable on the first day
of May and November of each calendar year commencing May 1, 1998 (or such
earlier date on which the Tranche B Term Loans become due and payable pursuant
to Section 9), each of which installments on any such date shall be in an amount
equal to such Tranche B Term Loan Lender's Tranche B Term Loan Commitment
Percentage of the amount set forth below opposite such installment, PROVIDED
that the final
20
26
installment of the Tranche B Term Loans shall be payable on the Tranche B Term
Loan Termination Date:
INSTALLMENT PRINCIPAL AMOUNT
----------- ----------------
May 1, 1998 $ 250,000
November 1, 1998 $ 250,000
May 1, 1999 $ 250,000
November 1, 1999 $ 250,000
May 1, 2000 $ 250,000
November 1, 2000 $ 250,000
May 1, 2001 $ 250,000
November 1, 2001 $ 250,000
May 1, 2002 $ 250,000
November 1, 2002 $ 250,000
May 1, 2003 $ 250,000
November 1, 2003 $ 250,000
May 1, 2004 $11,750,000
November 1, 2004 $11,750,000
May 1, 2005 $11,750,000
September [__], 2005 $11,750,000.
The Borrower hereby further agrees to pay to the Administrative Agent for the
account of each Tranche B Term Loan Lender interest on the unpaid principal
amount of the Tranche B Term Loans from time to time outstanding from the
Closing Date until payment in full thereof at the rates per annum, and on the
dates, set forth in subsection 4.5.
2.4 EVIDENCE OF TRANCHE A TERM LOAN AND TRANCHE B TERM LOAN
DEBT. (a) Each Tranche A Term Loan Lender and Tranche B Term Loan Lender shall
maintain in accordance with its usual practice an account or accounts evidencing
indebtedness of the Borrower to such Tranche A Term Loan Lender or Tranche B
Term Loan Lender resulting from the Tranche A Term Loan or Tranche B Term Loan,
as the case may be, made by such Tranche A Term Loan Lender or Tranche B Term
Loan Lender, including the amounts of principal and interest payable and paid to
such Tranche A Term Loan Lender or Tranche B Term Loan Lender from time to time
under this Agreement.
(b) The Administrative Agent shall record in the Register,
with separate subaccounts therein for each Tranche A Term Loan Lender and
Tranche B Term Loan Lender, (i) the amount of each Tranche A Term Loan and
Tranche B Term Loan made hereunder, the Type thereof and, in the case of
Eurodollar Loans, each Interest Period applicable thereto, (ii) the amount of
any principal or interest due and payable or to become due and payable from the
Borrower to each Tranche A Term Loan Lender and each Tranche B Term Loan Lender
hereunder and (iii) both the amount of any sum received by the Administrative
Agent
21
27
hereunder from the Borrower and each Tranche A Term Loan Lender's or Tranche B
Term Loan Lender's, as the case may be, share thereof, if any.
(c) The entries made in the Register pursuant to subsection
2.4(b) shall, to the extent permitted by applicable law, be PRIMA FACIE evidence
of the existence and amounts of the obligations of the Borrower therein
recorded; PROVIDED, HOWEVER, that the failure of any Tranche A Term Loan Lender
or Tranche B Term Loan Lender to maintain any account pursuant to subsection
2.4(a) or the Administrative Agent to make recordings in the Register pursuant
to subsection 2.4(b), or any error therein, shall not in any manner affect the
obligation of the Borrower to repay (with applicable interest) the Tranche A
Term Loan or Tranche B Term Loan, as the case may be, made to the Borrower by
such Tranche A Term Loan Lender or Tranche B Term Loan Lender in accordance with
the terms of this Agreement.
(d) The Borrower agrees that, upon the request to the
Administrative Agent by any Tranche A Term Loan Lender or Tranche B Term Loan
Lender, which request is communicated to the Borrower, the Borrower will execute
and deliver (i) to such Tranche A Term Loan Lender, a promissory note of the
Borrower dated the Closing Date evidencing the Tranche A Term Loans made by such
Tranche A Term Loan Lender, substantially in the form of Exhibit A-1 (a "TRANCHE
A TERM NOTE"), payable to the order of such Tranche A Term Loan Lender and in a
principal amount equal to the unpaid principal amount of the Tranche A Term
Loans made by such Tranche A Term Loan Lender and/or (ii) to such Tranche B Term
Loan Lender a promissory note of the Borrower dated the Closing Date evidencing
the Tranche B Term Loans made by such Tranche B Term Loan Lender, substantially
in the form of Exhibit A-2 (a "TRANCHE B TERM NOTE"), payable to the order of
such Tranche B Term Loan Lender and in a principal amount equal to the unpaid
principal amount of the Tranche B Term Loans made by such Tranche B Term Loan
Lender. Each Tranche A Term Loan Lender and each Tranche B Term Loan Lender is
hereby authorized to record the date, Type and amount of each Tranche A Term
Loan or Tranche B Term Loan, as the case may be, made by such Tranche A Term
Loan Lender or Tranche B Term Loan Lender, the date and amount of each payment
or prepayment of principal thereof, each continuation thereof, each conversion
of all or a portion thereof to another Type and, in the case of Eurodollar
Loans, the length of each Interest Period and Eurodollar Rate with respect
thereto, on the schedule (or any continuation of the schedule) annexed to and
constituting a part of its Tranche A Term Note or its Tranche B Term Note, as
the case may be, and any such recordation shall, to the extent permitted by
applicable law, constitute PRIMA FACIE evidence of the accuracy of the
information so recorded, PROVIDED that the failure to make any such recordation
(or any error therein) shall not affect the obligation of the Borrower to repay
(with applicable interest) the Tranche A Term Loans or the Tranche B Term Loans,
as the case may be, made to the Borrower in accordance with the terms of this
Agreement.
22
28
SECTION 3. AMOUNT AND TERMS OF REVOLVING CREDIT COMMITMENTS
3.1 REVOLVING CREDIT COMMITMENTS. (a) Subject to the terms
and conditions hereof, each Revolving Credit Lender severally agrees to make
revolving credit loans ("REVOLVING CREDIT LOANS") (provided, that any repricing
or conversion of an outstanding Revolving Credit Loan shall not be considered a
making of a Revolving Credit Loan), to the Borrower from time to time during the
Revolving Credit Commitment Period in an aggregate principal amount at any one
time outstanding not to exceed the amount of such Revolving Credit Lender's
Revolving Credit Commitment. During the Revolving Credit Commitment Period the
Borrower may use the Revolving Credit Commitments by borrowing, prepaying the
Revolving Credit Loans in whole or in part, and reborrowing, all in accordance
with the terms and conditions hereof.
(b) The Revolving Credit Loans may from time to time be (i)
Eurodollar Loans, (ii) ABR Loans or (iii) a combination thereof, as determined
by the Borrower and notified to the Administrative Agent in accordance with
subsections 3.2 and 4.3, PROVIDED that no Revolving Credit Loan shall be made as
a Eurodollar Loan after the day that is one month prior to the Termination Date.
3.2 PROCEDURE FOR BORROWING. The Borrower may borrow under
the Revolving Credit Commitments during the Revolving Credit Commitment Period
on any Business Day, PROVIDED that the Borrower shall give the Administrative
Agent irrevocable notice (which notice must be received by the Administrative
Agent prior to 10:00 A.M., New York City time, (a) three Business Days prior to
the requested Borrowing Date, if all or any part of the requested Revolving
Credit Loans are to be initially Eurodollar Loans, or (b) one Business Day prior
to the requested Borrowing Date, if all of the requested Revolving Credit Loans
are to be initially ABR Loans), specifying (i) the amount to be borrowed, (ii)
the requested Borrowing Date, (iii) whether the borrowing is to be of Eurodollar
Loans, ABR Loans or a combination thereof and (iv) if the borrowing is to be
entirely or partly of Eurodollar Loans, the respective amounts of each such Type
of Revolving Credit Loan and the respective lengths of the initial Interest
Periods for such Eurodollar Loans. The Revolving Credit Loans made on the
Closing Date shall initially be ABR Loans. Each borrowing under the Revolving
Credit Commitments shall be in an amount equal to $1,000,000 or a whole multiple
of $100,000 in excess thereof. Upon receipt of any such notice from the
Borrower, the Administrative Agent shall promptly notify each Lender thereof.
Each Revolving Credit Lender will make the amount of its pro rata share of each
borrowing available to the Administrative Agent for the account of the Borrower
at the office of the Administrative Agent specified in subsection 11.2 prior to
12:00 Noon, New York City time, on the Borrowing Date requested by the Borrower
in funds immediately available to the Administrative Agent. Such borrowing will
then be made available to the Borrower by the Administrative Agent crediting the
account of the Borrower on the books of such office with the aggregate of the
amounts made available to the Administrative Agent by the Revolving Credit
Lenders and in like funds as received by the Administrative Agent. The failure
of any Revolving Credit Lender to make the Revolving
23
29
Credit Loan to be made by it as part of any borrowing shall not relieve any
other Revolving Credit Lender of its obligation to make available its share of
such borrowing.
3.3 COMMITMENT FEE. The Borrower agrees to pay to the
Administrative Agent for the account of each Revolving Credit Lender a
commitment fee for the period from and including the first day of the Revolving
Credit Commitment Period to the Termination Date, computed at the rate of 1/2 of
1% per annum on the average daily amount of the Available Revolving Credit
Commitment of such Revolving Credit Lender during the period for which payment
is made, payable quarterly in arrears on the last day of each March, June,
September and December and on the Termination Date or such earlier date as the
Revolving Credit Commitments shall terminate as provided herein, commencing on
the first of such dates to occur after the date hereof.
3.4 TERMINATION OR REDUCTION OF REVOLVING CREDIT
COMMITMENTS. The Borrower shall have the right, upon not less than five Business
Days' notice to the Administrative Agent, to terminate the Revolving Credit
Commitments or, from time to time, to reduce the amount of the Revolving Credit
Commitments. Any such reduction shall be in an amount equal to $5,000,000 or a
whole multiple thereof and shall reduce permanently the Revolving Credit
Commitments then in effect.
3.5 REPAYMENT OF LOANS; EVIDENCE OF DEBT. (a) The Borrower
hereby unconditionally promises to pay to the Administrative Agent for the
account of each Revolving Credit Lender the then unpaid principal amount of each
Revolving Credit Loan of such Revolving Credit Lender on the Termination Date
(or such earlier date on which the Revolving Credit Loans become due and payable
pursuant to Section 9). The Borrower hereby further agrees to pay interest on
the unpaid principal amount of the Revolving Credit Loans from time to time
outstanding from the date hereof until payment in full thereof at the rates per
annum, and on the dates, set forth in subsection 4.5.
(b) Each Revolving Credit Lender shall maintain in
accordance with its usual practice an account or accounts evidencing
indebtedness of the Borrower to such Revolving Credit Lender resulting from each
Revolving Credit Loan of such Revolving Credit Lender from time to time,
including the amounts of principal and interest payable and paid to such
Revolving Credit Lender from time to time under this Agreement.
(c) The Administrative Agent shall maintain the Register
pursuant to subsection 11.6(d), and a subaccount therein for each Revolving
Credit Lender, in which shall be recorded (i) the amount of each Revolving
Credit Loan made hereunder, the Type thereof and each Interest Period applicable
with respect to each Eurodollar Loan, (ii) the amount of any principal or
interest due and payable or to become due and payable from the Borrower to each
Revolving Credit Lender hereunder and (iii) both the amount of any sum received
by the Administrative Agent hereunder from the Borrower and each Revolving
Credit Lender's share thereof.
24
30
(d) The entries made in the Register and the accounts of
each Lender maintained pursuant to subsection 3.5(b) shall, to the extent
permitted by applicable law, be PRIMA FACIE evidence of the existence and
amounts of the obligations of the Borrower therein recorded; PROVIDED, HOWEVER,
that the failure of any Revolving Credit Lender or the Administrative Agent to
maintain the Register or any such account, or any error therein, shall not in
any manner affect the obligation of the Borrower to repay (with applicable
interest) the Revolving Credit Loans made to such Borrower by such Revolving
Credit Lender in accordance with the terms of this Agreement.
(e) The Borrower agrees that, upon the request to the
Administrative Agent by any Revolving Credit Lender, the Borrower will execute
and deliver to such Revolving Credit Lender a promissory note of the Borrower
evidencing the Revolving Credit Loans of such Revolving Credit Lender,
substantially in the form of Exhibit A-3 with appropriate insertions as to date
and principal amount (a "REVOLVING CREDIT NOTE").
SECTION 4. GENERAL PROVISIONS APPLICABLE TO THE LOANS
4.1 OPTIONAL PREPAYMENTS. The Borrower may at any time and
from time to time prepay the Loans, in whole or in part, without premium or
penalty, upon irrevocable notice to the Administrative Agent, at least four
Business Days' prior to the date of prepayment if all or any part of the Loans
to be prepaid are Eurodollar Loans, and at least one Business Day prior to the
date of prepayment if all of the Loans to be prepaid are ABR Loans, specifying
the date and amount of prepayment and whether the prepayment is of Eurodollar
Loans, ABR Loans or a combination thereof, and, if of a combination thereof, the
amount allocable to each. Upon receipt of any such notice, the Administrative
Agent shall promptly notify each Lender thereof. If any such notice is given,
the amount specified in such notice shall be due and payable on the date
specified therein, together with any amounts payable pursuant to subsection 4.12
and, in the case of prepayments of the Term Loans only, accrued interest to such
date on the amount prepaid. Prepayments of the Term Loans pursuant to this
subsection 4.1 shall be applied to the prepayment of the Tranche A Term Loans
and the Tranche B Term Loans PRO RATA. Partial prepayments of the Tranche A Term
Loans and Tranche B Term Loans pursuant to this subsection 4.1 shall be applied
to the remaining installments of principal thereof PRO RATA. Amounts prepaid on
account of the Term Loans may not be reborrowed. Partial prepayments shall be in
an aggregate principal amount of $1,000,000 or whole multiples thereof.
4.2 MANDATORY PREPAYMENTS. (a) In the event that the
Borrower or any of its Subsidiaries shall effect (i) an Asset Sale or (ii) a
Shareholder Asset Sale if, after giving effect to such Shareholder Asset Sale,
the Borrower does not continue to hold in excess of a 50% ownership interest in
the relevant Subsidiary or Management Company, the Borrower shall promptly
notify the Administrative Agent thereof and, unless the Required Lenders
otherwise consent, as promptly as possible, but in no case later than five
Business Days after receipt of the Net Proceeds of such Asset Sale or
Shareholder Asset Sale, as the case may be, shall apply an amount equal to 100%
of the Net Proceeds of such Asset Sale or Shareholder Asset Sale, as
25
31
the case may be, to prepay outstanding Loans, together with accrued interest on
the principal being prepaid to the date of prepayment and, in the case of
Eurodollar Loans which are prepaid prior to the last day of the Interest Period
therefor, the amounts required by subsection 4.12. The Borrower shall, to the
extent reasonably practicable, give notice to the Administrative Agent of any
prepayment required by this subsection 4.2 (which notice need not be given more
than four Business Days prior to the date of prepayment).
(b) All prepayments of Loans pursuant to this subsection 4.2
shall be without premium or penalty, other than amounts required by subsection
4.12.
(c) Outstanding Loans shall be prepaid, together with
accrued and unpaid interest thereon to the date of prepayment, to the extent
that the aggregate amount of outstanding Revolving Credit Loans exceeds the
aggregate Revolving Credit Commitments of the Revolving Credit Lenders then in
effect.
(d) Prepayments of the Loans pursuant to subsection
4.2(a)(i) shall be applied, FIRST, to the prepayment of the Tranche A Term Loans
and the Tranche B Term Loans PRO RATA and shall be applied to the remaining
installments thereof on a PRO RATA basis and, SECOND, to the prepayment of the
Revolving Credit Loans. Prepayments of the Loans pursuant to subsection
4.2(a)(ii) shall be applied to the prepayment of the Revolving Credit Loans
without any accompanying reduction of the Revolving Credit Commitments of the
Revolving Credit Lenders. Amounts to be applied pursuant to this subsection
4.2(d) to the prepayment of Term Loans and/or Revolving Credit Loans shall be
applied, as applicable, first to reduce outstanding Term Loans and/or Revolving
Credit Loans which are ABR Loans. Any amounts remaining after each such
application shall be applied to prepay Term Loans and/or Revolving Credit Loans
which are Eurodollar Loans.
4.3 CONVERSION AND CONTINUATION OPTIONS. (a) The Borrower
may elect from time to time to convert Eurodollar Loans to ABR Loans by giving
the Administrative Agent at least two Business Days' prior irrevocable notice of
such election, PROVIDED that any such conversion of Eurodollar Loans may only be
made on the last day of an Interest Period with respect thereto. The Borrower
may elect from time to time to convert ABR Loans to Eurodollar Loans by giving
the Administrative Agent at least three Business Days' prior irrevocable notice
of such election. Any such notice of conversion to Eurodollar Loans shall
specify the length of the initial Interest Period or Interest Periods therefor.
Upon receipt of any such notice the Administrative Agent shall promptly notify
each affected Lender thereof. All or any part of outstanding Eurodollar Loans
and ABR Loans may be converted as provided herein, PROVIDED that (i) no Loan may
be converted into a Eurodollar Loan when any Event of Default has occurred and
is continuing and the Administrative Agent has or the Required Lenders have
determined that such a conversion is not appropriate and (ii) no Loan may be
converted into a Eurodollar Loan after the date that is one month prior to the
Termination Date (in the case of conversions of Revolving Credit Loans) or the
date of the final installment of principal of the respective Term Loans (in the
case of any conversions of any Term Loans).
26
32
(b) Any Eurodollar Loans may be continued as such upon the
expiration of the then current Interest Period with respect thereto by the
Borrower giving notice to the Administrative Agent, in accordance with the
applicable provisions of the term "Interest Period" set forth in subsection 1.1,
of the length of the next Interest Period to be applicable to such Loans,
PROVIDED that no Eurodollar Loan may be continued as such (i) when any Event of
Default has occurred and is continuing and the Administrative Agent has or the
Required Lenders have determined that such a continuation is not appropriate or
(ii) after the date that is one month prior to the Termination Date (in case of
conversions of Revolving Credit Loans) or the date of the final installment of
principal of the respective Term Loans (in the case of any conversions of any
Term Loans) and PROVIDED, FURTHER, that if the Borrower shall fail to give such
notice or if such continuation is not permitted such Eurodollar Loans shall be
automatically converted to ABR Loans on the last day of such then expiring
Interest Period.
4.4 MINIMUM AMOUNTS AND MAXIMUM NUMBER OF TRANCHES. All
borrowings, conversions and continuations of Loans hereunder and all selections
of Interest Periods hereunder shall be in such amounts and be made pursuant to
such elections so that, after giving effect thereto, the aggregate principal
amount of the Loans comprising each Eurodollar Tranche shall be equal to
$5,000,000 or a whole multiple of $1,000,000 in excess thereof. In no event
shall there be more than eight Eurodollar Tranches outstanding at any time.
4.5 INTEREST RATES AND PAYMENT DATES. (a) Each Eurodollar
Loan shall bear interest for each day during each Interest Period with respect
thereto at a rate per annum equal to the Eurodollar Rate determined for such day
plus the Applicable Margin.
(b) Each ABR Loan shall bear interest at a rate per annum
equal to the ABR plus the Applicable Margin.
(c) If all or a portion of (i) the principal amount of any
Loan, (ii) any interest payable thereon or (iii) any commitment fee or other
amount payable hereunder shall not be paid when due (whether at the stated
maturity, by acceleration or otherwise), such overdue amount shall bear interest
at a rate per annum which is (x) in the case of overdue principal, the rate that
would otherwise be applicable thereto pursuant to the foregoing provisions of
this subsection plus 2% or (y) in the case of overdue interest, commitment fee
or other amount, the rate described in paragraph (b) of this subsection plus 2%,
in each case from the date of such non-payment until such amount is paid in full
(as well after as before judgment).
(d) Interest shall be payable in arrears on each Interest
Payment Date, PROVIDED that interest accruing pursuant to paragraph (c) of this
subsection shall be payable from time to time on demand.
4.6 COMPUTATION OF INTEREST AND FEES. (a) Whenever it is
calculated on the basis of the Prime Rate, interest shall be calculated on the
basis of a 365- (or 366-, as the case may be) day year for the actual days
elapsed; and, otherwise, interest as well as commitment fees shall be calculated
on the basis of a 360-day year for the actual days elapsed. The
27
33
Administrative Agent shall as soon as practicable notify the Borrower and the
Lenders of each determination of a Eurodollar Rate. Any change in the interest
rate on a Loan resulting from a change in the ABR, the Eurocurrency Reserve
Requirements, the C/D Assessment Rate or the C/D Reserve Percentage shall become
effective as of the opening of business on the day on which such change becomes
effective. The Administrative Agent shall as soon as practicable notify the
Borrower and the Lenders of the effective date and the amount of each such
change in interest rate.
(b) Each determination of an interest rate by the
Administrative Agent pursuant to any provision of this Agreement shall be
conclusive and binding on the Borrower and the Lenders in the absence of
manifest error. The Administrative Agent shall, at the request of the Borrower,
deliver to the Borrower a statement showing the quotations used by the
Administrative Agent in determining any interest rate pursuant to subsection
4.5(a).
4.7 INABILITY TO DETERMINE INTEREST RATE. If prior to the
first day of any Interest Period:
(a) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrower) that,
by reason of circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the Eurodollar Rate for
such Interest Period, or
(b) the Administrative Agent shall have received notice from
Chase that the Eurodollar Rate determined or to be determined for such
Interest Period will not adequately and fairly reflect the cost to the
Lenders generally (as conclusively certified by Chase) of making or
maintaining their affected Loans during such Interest Period,
the Administrative Agent shall give telecopy or telephonic notice thereof to the
Borrower and the affected Lenders as soon as practicable thereafter. If such
notice is given (x) any Eurodollar Loans requested to be made on the first day
of such Interest Period shall be made as ABR Loans, (y) any ABR Loans that were
to have been converted on the first day of such Interest Period to Eurodollar
Loans shall be continued as ABR Loans and (z) any outstanding Eurodollar Loans
shall be converted, on the first day of such Interest Period, to ABR Loans.
Until such notice has been withdrawn by the Administrative Agent, no further
Eurodollar Loans shall be made or continued as such, nor shall the Borrower have
the right to convert Loans to Eurodollar Loans.
4.8 PRO RATA TREATMENT AND PAYMENTS. (a) Each borrowing by
the Borrower from the Lenders hereunder, each payment by the Borrower on account
of any commitment fee hereunder and any reduction of the Revolving Credit
Commitments, the Tranche A Term Loan Commitments or the Tranche B Term Loan
Commitments, as the case may be, of the Lenders shall be made PRO RATA according
to the respective Revolving Credit Commitment Percentages, the Tranche A Term
Loan Commitment Percentages, or the Tranche B Term Loan Commitment Percentages,
as the case may be, of the Lenders. Each payment (including each
28
34
prepayment) by the Borrower on account of principal of and interest on the Loans
shall be made PRO RATA according to the respective outstanding principal amounts
of the Loans then held by the Lenders. All payments (including prepayments) to
be made by the Borrower hereunder, whether on account of principal, interest,
fees or otherwise, shall be made without set off or counterclaim and shall be
made prior to 12:00 Noon, New York City time, on the due date thereof to the
Administrative Agent, for the account of the Revolving Credit Lenders or the
Term Loan Lenders, as the case may be, at the Administrative Agent's office
specified in subsection 11.2, in Dollars and in immediately available funds. The
Administrative Agent shall distribute such payments to the Lenders promptly upon
receipt (and if such payment is received prior to 12:00 Noon, on the same day)
in like funds as received. If any payment hereunder becomes due and payable on a
day other than a Business Day, such payment shall be extended to the next
succeeding Business Day, and, with respect to payments of principal, interest
thereon shall be payable at the then applicable rate during such extension and
such extension of time shall in such case be included in the computation of
payment of interest or fees, as the case may be.
(b) Unless the Administrative Agent shall have been notified in
writing by any Lender prior to a borrowing that such Lender will not make the
amount that would constitute its portion of such borrowing available to the
Administrative Agent, the Administrative Agent may assume that such Lender is
making such amount available to the Administrative Agent, and the Administrative
Agent may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. If such amount is not made available to the Administrative
Agent by the required time on the Borrowing Date therefor, such Lender shall pay
to the Administrative Agent, on demand, such amount with interest thereon at a
rate equal to the daily average Federal Funds Effective Rate for the period
until such Lender makes such amount immediately available to the Administrative
Agent. A certificate of the Administrative Agent submitted to any Lender with
respect to any amounts owing under this subsection shall be conclusive in the
absence of manifest error. If such Lender's portion of such borrowing is not
made available to the Administrative Agent by such Lender within three Business
Days of such Borrowing Date, the Administrative Agent shall also be entitled to
recover such amount with interest thereon at the rate per annum applicable to
ABR Loans hereunder, on demand, from the Borrower.
(c) In the event that a Revolving Credit Lender fails to make
available after a period of three Business Days to the Administrative Agent its
portion of a borrowing, the Borrower may, upon not less than five Business Days
prior irrevocable written notice to the Administrative Agent, immediately
terminate the Revolving Credit Commitment of such Revolving Credit Lender, and
designate an acceptable replacement Revolving Credit Lender (which may be one of
the other Revolving Credit Lenders) to purchase all of the Revolving Credit
Lender's interests in accordance with the provisions of subsection 11.6(c). Any
Revolving Credit Lender being so replaced by the Borrower agrees to transfer its
interest in this Agreement and, if applicable, its Revolving Credit Note, to the
substitute Revolving Credit Lender pursuant to subsection 11.6(c), provided that
concurrently with such transfer, such Revolving Credit Lender so substituted
shall be paid all amounts owing to it hereunder and all
29
35
costs reasonably determined by it to be attributable to such transfer.
Notwithstanding the foregoing, the Revolving Credit Lender being replaced shall
not be deemed to be released from any of its rights or obligations under any
Loan Document (including, without limitation, subsection 10.7) for actions taken
or failed to be taken by it prior to the date of such substitution.
4.9 ILLEGALITY. Notwithstanding any other provision herein,
if the adoption of or any change in any Requirement of Law or in the
interpretation or application thereof shall make it unlawful for any Lender to
make or maintain Eurodollar Loans as contemplated by this Agreement, (a) the
commitment of such Lender hereunder to make Eurodollar Loans, continue
Eurodollar Loans as such and convert ABR Loans to Eurodollar Loans shall
forthwith be cancelled and (b) such Lender's Loans then outstanding as
Eurodollar Loans, if any, shall be converted automatically to ABR Loans on the
respective last days of the then current Interest Periods with respect to such
Loans or within such earlier period as required by law. If any such conversion
of a Eurodollar Loan occurs on a day which is not the last day of the then
current Interest Period with respect thereto, the Borrower shall pay to such
Lender such amounts, if any, as may be required pursuant to subsection 4.12.
4.10 REQUIREMENTS OF LAW. (a) If the adoption of or any
change in any Requirement of Law or in the interpretation or application thereof
or compliance by any Lender with any request or directive (whether or not having
the force of law) from any central bank or other Governmental Authority made
subsequent to the date hereof:
(i) shall subject any Lender to any tax of any kind
whatsoever with respect to this Agreement, any Note or any Eurodollar
Loan made by it, or change the basis of taxation of payments to such
Lender in respect thereof (except for Non-Excluded Taxes covered by
subsection 4.11 and changes in the rate of tax on the overall net income
of such Lender);
(ii) shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets
held by, deposits or other liabilities in or for the account of,
advances, loans or other extensions of credit by, or any other
acquisition of funds by, any office of such Lender which is not
otherwise included in the determination of the Eurodollar Rate
hereunder; or
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting into,
continuing or maintaining Eurodollar Loans or to reduce any amount receivable
hereunder in respect thereof, then, in any such case, the Borrower shall
promptly pay such Lender such additional amount or amounts as will compensate
such Lender for such increased cost or reduced amount receivable.
30
36
(b) If any Lender shall have determined that the adoption of or any
change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority made subsequent to the date hereof shall have the effect of reducing
the rate of return on such Lender's or such corporation's capital as a
consequence of its obligations hereunder to a level below that which such Lender
or such corporation could have achieved but for such adoption, change or
compliance (taking into consideration such Lender's or such corporation's
policies with respect to capital adequacy) by an amount deemed by such Lender to
be material, then from time to time, the Borrower shall promptly pay to such
Lender such additional amount or amounts as will compensate such Lender for such
reduction.
(c) If any Lender becomes entitled to claim any additional amounts
pursuant to this subsection, it shall promptly notify the Borrower (with a copy
to the Administrative Agent) of the event by reason of which it has become so
entitled; PROVIDED, that no additional amount shall be payable under this
subsection 4.10 for a period longer than one year prior to such notice to the
Borrower. A certificate as to any additional amounts payable pursuant to this
subsection submitted by such Lender to the Borrower (with a copy to the
Administrative Agent) shall be conclusive in the absence of manifest error. The
agreements in this subsection shall survive for a period of one year the
termination of this Agreement and the payment of the Loans and all other amounts
payable hereunder.
4.11 TAXES. (a) All payments made by the Borrower under this
Agreement and any Notes shall be made free and clear of, and without deduction
or withholding for or on account of, any present or future income, stamp or
other taxes, levies, imposts, duties, charges, fees, deductions or withholdings,
now or hereafter imposed, levied, collected, withheld or assessed by any
Governmental Authority, excluding net income taxes and franchise taxes (imposed
in lieu of net income taxes) imposed on the Administrative Agent or any Lender
as a result of a present or former connection between the Administrative Agent
or such Lender and the jurisdiction of the Governmental Authority imposing such
tax or any political subdivision or taxing authority thereof or therein (other
than any such connection arising solely from the Administrative Agent or such
Lender having executed, delivered or performed its obligations or received a
payment under, or enforced, this Agreement or any Note). If any such
non-excluded taxes, levies, imposts, duties, charges, fees deductions or
withholdings ("NON-EXCLUDED TAXES") are required to be withheld from any amounts
payable to the Administrative Agent or any Lender hereunder or under any Note,
the amounts so payable to the Administrative Agent or such Lender shall be
increased to the extent necessary to yield to the Administrative Agent or such
Lender (after payment of all Non-Excluded Taxes) interest or any such other
amounts payable hereunder at the rates or in the amounts specified in this
Agreement, PROVIDED, HOWEVER, that the Borrower shall not be required to
increase any such amounts payable to any Lender that is not organized under the
laws of the United States of America or a state thereof if such Lender fails to
comply with the requirements of paragraph (b) of this subsection. Whenever any
Non-Excluded Taxes are payable by the Borrower, as promptly as possible
thereafter the Borrower shall send to the Administrative Agent for its own
31
37
account or for the account of such Lender, as the case may be, a certified copy
of an original official receipt received by the Borrower showing payment
thereof. If the Borrower fails to pay any Non-Excluded Taxes when due to the
appropriate taxing authority or fails to remit to the Administrative Agent the
required receipts or other required documentary evidence, the Borrower shall
indemnify the Administrative Agent and the Lenders for any incremental taxes,
interest or penalties that may become payable by the Administrative Agent or any
Lender as a result of any such failure. The agreements in this subsection shall
survive for a period of one year the termination of this Agreement and the
payment of the Loans and all other amounts payable hereunder.
(b) Each Lender that is not incorporated under the laws of
the United States of America or a state thereof shall:
(i) deliver to the Borrower and the Administrative Agent (A)
two duly completed copies of United States Internal Revenue Service Form
1001 or 4224, or successor applicable form, as the case may be, and (B)
an Internal Revenue Service Form W-8 or W-9, or successor applicable
form, as the case may be;
(ii) deliver to the Borrower and the Administrative Agent two
further copies of any such form or certification on or before the date
that any such form or certification expires or becomes obsolete and
after the occurrence of any event requiring a change in the most recent
form previously delivered by it to the Borrower; and
(iii) obtain such extensions of time for filing and complete
such forms or certifications as may reasonably be requested by the
Borrower or the Administrative Agent;
unless in any such case an event (including, without limitation, any change in
treaty, law or regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders all such forms inapplicable
or which would prevent such Lender from duly completing and delivering any such
form with respect to it and such Lender so advises the Borrower and the
Administrative Agent. Such Lender shall certify (i) in the case of a Form 1001
or 4224, that it is entitled to receive payments under this Agreement without
deduction or withholding of any United States federal income taxes and (ii) in
the case of a Form W-8 or W-9, that it is entitled to an exemption from United
States backup withholding tax. Each Person that shall become a Lender or a
Participant pursuant to subsection 9.6 shall, upon the effectiveness of the
related transfer, be required to provide all of the forms and statements
required pursuant to this subsection, provided that in the case of a Participant
such Participant shall furnish all such required forms and statements to the
Lender from which the related participation shall have been purchased.
4.12 INDEMNITY. The Borrower agrees to indemnify each Lender
and to hold each Lender harmless from any loss or expense which such Lender may
sustain or incur as a consequence of (a) default by the Borrower in making a
borrowing of, conversion into or
32
38
continuation of Eurodollar Loans after the Borrower has given a notice
requesting the same in accordance with the provisions of this Agreement, (b)
default by the Borrower in making any prepayment after the Borrower has given a
notice thereof in accordance with the provisions of this Agreement or (c) the
making of a prepayment of Eurodollar Loans on a day which is not the last day of
an Interest Period with respect thereto. Such indemnification may include an
amount equal to the excess, if any, of (i) the amount of interest which would
have accrued on the amount so prepaid, or not so borrowed, converted or
continued, for the period from the date of such prepayment or of such failure to
borrow, convert or continue to the last day of such Interest Period (or, in the
case of a failure to borrow, convert or continue, the Interest Period that would
have commenced on the date of such failure) in each case at the applicable rate
of interest for such Loans provided for herein (excluding, however, the
Applicable Margin included therein, if any) over (ii) the amount of interest (as
reasonably determined by such Lender) which would have accrued to such Bank on
such amount by placing such amount on deposit for a comparable period with
leading banks in the interbank eurodollar market. This covenant shall survive
the termination of this Agreement and the payment of the Loans and all other
amounts payable hereunder.
4.13 CHANGE OF LENDING OFFICE. Each Lender agrees that if it
makes any demand for payment under subsection 4.10 or 4.11(a), or if any
adoption or change of the type described in subsection 4.9 shall occur with
respect to it, it will use reasonable efforts (consistent with its internal
policy and legal and regulatory restrictions and so long as such efforts would
not be unreasonably disadvantageous to it, as determined in its sole discretion)
to designate a different lending office if the making of such a designation
would reduce or obviate the need for the Borrower to make payments under
subsection 4.10 or 4.11(a), or would eliminate or reduce the effect of any
adoption or change described in subsection 4.9.
SECTION 5. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to enter into
this Agreement and to make the Loans, the Borrower hereby represents and
warrants to the Administrative Agent and each Lender that:
5.1 FINANCIAL CONDITION. The Borrower has heretofore
furnished to each Lender copies of (i) the audited consolidated balance sheet of
the Borrower and its consolidated Subsidiaries as at December 31, 1996 and the
related audited consolidated statements of income and of cash flows for the
fiscal year ended on such date, audited by Coopers & Xxxxxxx LLC and (ii) the
unaudited consolidated balance sheet of the Borrower and its consolidated
Subsidiaries as at June 30, 1997 and the related unaudited consolidated
statements of income and of cash flows for the six-month period ended on such
date, in each case certified by a Responsible Officer (the "FINANCIAL
STATEMENTS"). The Financial Statements present fairly, in all material respects,
the consolidated financial condition of the Borrower and its consolidated
Subsidiaries as at December 31, 1996 and June 30, 1997 and present fairly, in
all material respects, the consolidated results of their operations and their
consolidated cash flows
33
39
for the periods then ended (subject to normal year-end audit adjustments and the
absence of footnote disclosure). The Financial Statements, including the related
schedules and notes thereto, have been prepared in accordance with GAAP applied
consistently throughout the period involved. Except as set forth on Schedule
5.1, neither the Borrower nor any of its consolidated Subsidiaries had, at
December 31, 1996 or at the date hereof, any material Guarantee Obligation,
material contingent liability or material liability for taxes, or any material
long-term lease or unusual material forward or long-term commitment, including,
without limitation, any interest rate or foreign currency swap or exchange
transaction, which is not reflected in the foregoing statements or in the notes
thereto. Except as set forth on Schedule 5.1, during the period from December
31, 1996 to and including the date hereof there has been no sale, transfer or
other disposition by the Borrower or any of its consolidated Subsidiaries of any
material part of its business or property and no purchase or other acquisition
of any business or property (including any capital stock of any other Person)
material in relation to the consolidated financial condition of the Borrower and
its Subsidiaries as at December 31, 1996.
5.2 NO CHANGE. (a) From December 31, 1996 except as set forth in
the Pro Forma Balance Sheet, there has been no development or event which has
had or could have a Material Adverse Effect, and (b) during the period from
December 31, 1996 to and including the date hereof, no dividends or other
distributions have been declared, paid or made upon the Capital Stock of the
Borrower nor has any of the Capital Stock of the Borrower been redeemed,
retired, purchased or otherwise acquired for value by the Borrower or any of its
Subsidiaries.
5.3 CORPORATE EXISTENCE; COMPLIANCE WITH LAW. Each of the
Borrower and its Subsidiaries (a) is duly organized, validly existing and in
good standing under the laws of the jurisdiction of its organization, (b) has
the power and authority, and the legal right, to own and operate its property,
to lease the property it operates as lessee and to conduct the business in which
it is currently engaged, (c) is duly qualified as a foreign corporation,
partnership or limited liability company, as applicable, and in good standing
under the laws of each jurisdiction where its ownership, lease or operation of
property or the conduct of its business requires such qualification except where
the failure to be so qualified or in good standing would not have a Material
Adverse Effect and (d) is in compliance with its certificate of incorporation
and by-laws or other similar organizational or governing documents and with all
Requirements of Law, except to the extent that the failure to comply therewith
could not, in the aggregate, have a Material Adverse Effect.
5.4 CORPORATE POWER; AUTHORIZATION; ENFORCEABLE OBLIGATIONS.
The Borrower has the corporate power and authority, and the legal right, to
make, deliver and perform the Loan Documents to which it is a party and to
borrow hereunder and has taken all necessary corporate action to authorize the
borrowings on the terms and conditions of this Agreement and any Notes and to
authorize the execution, delivery and performance of the Loan Documents to which
it is a party. No consent or authorization of, filing with, notice to or other
act by or in respect of, any Governmental Authority or any other Person is
required in connection with the
34
40
borrowings hereunder or with the execution, delivery, performance, validity or
enforceability of the Loan Documents to which the Borrower is a party; PROVIDED
that the Administrative Agent's rights under the Pledge Agreement are subject to
the terms and provisions thereof. This Agreement has been, and each other Loan
Document to which it is a party will be, duly executed and delivered on behalf
of the Borrower. This Agreement constitutes, and each other Loan Document to
which it is a party when executed and delivered will constitute, a legal, valid
and binding obligation of the Borrower enforceable against the Borrower in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and by general equitable principles
(whether enforcement is sought by proceedings in equity or at law).
5.5 NO LEGAL BAR. The execution, delivery and performance of
the Loan Documents to which the Borrower is a party, the borrowings hereunder
and the use of the proceeds thereof will not violate any certificate of
incorporation and by-laws or other similar organizational or governing
documents, Requirement of Law or Contractual Obligation of the Borrower or of
any of its Subsidiaries, except for such violations which could not reasonably
be likely to have a Material Adverse Effect, and will not result in, or require,
the creation or imposition of any Lien on any of its or their respective
properties or revenues pursuant to any such organizational or governing
document, Requirement of Law or Contractual Obligation, except pursuant to this
Agreement.
5.6 NO MATERIAL LITIGATION. No litigation, investigation or
proceeding of or before any arbitrator or Governmental Authority is pending or,
to the knowledge of the Borrower, threatened by or against the Borrower or any
of its Subsidiaries or against any of its or their respective properties or
revenues which is in the Borrower's reasonable opinion reasonably like to have a
Material Adverse Effect.
5.7 NO DEFAULT. Neither the Borrower nor any of its
Subsidiaries is in default under or with respect to any of its Contractual
Obligations in any respect which could have a Material Adverse Effect. No
Default or Event of Default has occurred and is continuing.
5.8 OWNERSHIP OF PROPERTY; LIENS. Each of the Borrower and
its Subsidiaries has good record and marketable title in fee simple to, or a
valid leasehold interest in, all its material real property, and good title to,
or a valid leasehold interest in, all its other material property, and none of
such property is subject to any Lien except as permitted by subsection 8.3.
5.9 TAXES. Each of the Borrower and its Subsidiaries has
filed or caused to be filed all material tax returns which, to the knowledge of
the Borrower, are required to be filed or has timely filed a request for an
extension of such filing and has paid all taxes shown to be due and payable on
said returns or extension requests or on any assessments made against it or any
of its property and except as set forth on Schedule 5.9, all other taxes, fees
or other charges imposed on it or any of its property by any Governmental
Authority (other than any
35
41
the amount or validity of which are currently being contested in good faith by
appropriate proceedings and with respect to which reserves in conformity with
GAAP have been provided on the books of the Borrower or its Subsidiaries, as the
case may be and any which the failure to pay would not have a Material Adverse
Effect); no tax Lien has been filed, and, to the knowledge of the Borrower, no
material claim is being asserted, with respect to any such tax, fee or other
charge.
5.10 FEDERAL REGULATIONS. (a) No part of the proceeds of any
Loans will be used for "purchasing" or "carrying" any "margin stock" within the
respective meanings of each of the quoted terms under Regulation G or Regulation
U of the Board of Governors of the Federal Reserve System as now and from time
to time hereafter in effect. If requested by any Lender or the Administrative
Agent, the Borrower will furnish to the Administrative Agent and each Lender a
statement to the foregoing effect in conformity with the requirements of FR Form
G-1 or FR Form U-1 referred to in said Regulation G or Regulation U, as the
case may be.
(b) The Borrower is not subject to regulation under any
Federal or State statute or regulation (other than Regulation X of the Board of
Governors of the Federal Reserve System) which limits its ability to incur
Indebtedness.
5.11 ERISA. No Reportable Event has occurred during the
five-year period prior to the date on which this representation is made or
deemed made with respect to any Plan, and each Plan has complied in all material
respects with the applicable provisions of ERISA and the Code. The present value
of all accrued benefits under each Single Employer Plan maintained by the Parent
or any Commonly Controlled Entity (based on those assumptions used to fund the
Plans) did not, as of the last annual valuation date prior to the date on which
this representation is made or deemed made, exceed the value of the assets of
such Plan allocable to such accrued benefits. There are no Multiemployer Plans.
Neither the Parent nor any Commonly Controlled Entity has had a complete or
partial withdrawal from any Multiemployer Plan.
5.12 INVESTMENT COMPANY ACT. (a) Neither the Borrower nor any
of its Subsidiaries or other Management Companies is, or, after giving effect to
any Acquisition, will be, an "investment company", or a company "controlled" by
an "investment company", within the meaning of the Investment Company Act.
(b) Each of the Subsidiaries of the Borrower and each of its
other Management Companies is, to the extent required thereby, duly registered
as an investment adviser under the Investment Advisers Act. The Borrower is not
an "investment adviser" within the meaning of the Investment Advisers Act. Each
Fund which is sponsored by any Subsidiary or other Management Company and which
is required to be registered as an "investment company" under the Investment
Company Act is duly registered as such thereunder.
36
42
(c) The Borrower is not required to be duly registered as a
broker-dealer under the Securities Acts (and each Subsidiary and other
Management Company required to be so registered is so duly registered).
(d) Each of the Borrower and its Subsidiaries and other
Management Companies is duly registered, licensed or qualified as an investment
adviser or broker-dealer in each State of the United States where the conduct of
its business requires such registration, licensing or qualification and is in
compliance in all material respects with all Federal and State laws requiring
such registration, licensing or qualification, except to the extent where the
failure to be so registered, licensed or qualified or to be in such compliance
will not have a Material Adverse Effect.
5.13 INVESTMENT ADVISORY AGREEMENTS. Each of the investment
advisory agreements, distribution agreements and shareholder or other servicing
contracts to which the Borrower or any of its Subsidiaries or other Management
Companies is a party is a legal, valid and binding obligation of the parties
thereto enforceable against such parties in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law) except for failures
which individually and in the aggregate will not have a Material Adverse Effect;
and neither the Borrower nor any of its Subsidiaries or other Management
Companies is in breach or violation of or in default under any such agreement or
contract in any material respect which would individually or in the aggregate
have a Material Adverse Effect. The parties hereto understand that all customers
have the right to terminate such investment advisory agreements at will.
5.14 SUBSIDIARIES AND OTHER OWNERSHIP INTERESTS. The
Subsidiaries listed on Schedule 5.14 hereto constitute the only Subsidiaries of
the Borrower as at the date hereof. The Borrower has as at the date hereof an
equity or other ownership interest in Management Companies of the Borrower and
each other Person listed on Schedule 5.14 and other than as set forth on such
schedule, the Borrower has no such interest in any other Management Company or
Person.
5.15 PURPOSE OF LOANS. (a) The proceeds of the Term Loans
shall be used by the Borrower (i) to refinance loans outstanding under the
Existing Agreement, (ii) to finance a portion of the purchase price for the TBC
Acquisition and (iii) to pay fees and expenses to be incurred in connection
therewith and in connection with the execution and delivery of the Loan
Documents.
(b) The proceeds of the Revolving Credit Loans shall be used
by the Borrower (i) to refinance loans outstanding under the Existing Agreement,
(ii) to finance a portion of the purchase price for the TBC Acquisition, (iii)
for working capital purposes, up to $10,000,000 at any time outstanding, (iv) to
make Acquisitions and (iv) to pay fees and expenses to be
37
43
incurred in connection therewith and in connection with the execution and
delivery of the Loan Documents.
5.16 ACCURACY AND COMPLETENESS OF INFORMATION. To the best of
the Borrower's knowledge, the documents furnished and the statements made in
writing to the Lenders by or on behalf of the Borrower in connection with the
negotiation, preparation or execution of this Agreement or any of the other Loan
Documents, taken as a whole, do not contain any untrue statement of fact
material to the credit worthiness of the Borrower or omit to state any such
material fact necessary in order to make the statements contained therein not
misleading, in either case which has not been corrected, supplemented or
remedied by subsequent documents furnished or statements made in writing to the
Lenders prior to the date hereof.
SECTION 6. CONDITIONS PRECEDENT
6.1 CONDITIONS TO INITIAL LOANS. The agreement of each
Lender to make the initial Loan requested to be made by it is subject to the
satisfaction, immediately prior to or concurrently with the making of such Loan
on the Closing Date, of the following conditions precedent:
(a) LOAN DOCUMENTS. The Administrative Agent shall have
received (i) this Agreement, executed and delivered by a duly authorized
officer of the Borrower, with a counterpart for each Lender, and (ii)
each of the Stock Pledge Agreement, LLC Pledge Agreement and Partnership
Pledge Agreement each executed and delivered by a duly authorized
officer of the party thereto, with a counterpart or a conformed copy for
each Lender.
(b) RELATED AGREEMENTS. The Administrative Agent shall have
received, true and correct copies, of each of the existing Revenue
Sharing Agreements and any purchase agreements executed in connection
with an Acquisition or proposed Acquisition, and such other documents or
instruments as may be reasonably requested by the Administrative Agent,
(including, without limitation, a copy of any debt instrument, security
agreement or other material contract to which the Borrower, or one of
its Subsidiaries may be a party).
(c) NOTES. The Administrative Agent shall have received, for
the account of each Lender that has requested the same, a Note made by
the Borrower conforming to the requirements of this Agreement, and
executed by a duly authorized officer of the Borrower.
(d) BORROWING CERTIFICATE. The Administrative Agent shall
have received, with a counterpart for each Lender, a certificate of the
Borrower, dated the Closing Date, substantially in the form of Exhibit
C, with appropriate insertions and attachments,
38
44
satisfactory in form and substance to the Administrative Agent, executed
by two Responsible Officers of the Borrower.
(e) CORPORATE PROCEEDINGS OF THE BORROWER. The
Administrative Agent shall have received, with a counterpart for each
Lender, a copy of the resolutions, in form and substance satisfactory to
the Administrative Agent, of the Board of Directors of the Borrower
authorizing (i) the execution, delivery and performance of this
Agreement and the other Loan Documents to which it is a party, (ii) the
borrowings contemplated hereunder and (iii) the granting by it of the
Liens created pursuant to the Pledge Agreements, certified by the
Secretary or an Assistant Secretary of the Borrower as of the Closing
Date, which certificate shall be in form and substance satisfactory to
the Administrative Agent and shall state that the resolutions thereby
certified have not been amended, modified, revoked or rescinded.
(f) BORROWER INCUMBENCY CERTIFICATE. The Administrative
Agent shall have received, with a counterpart for each Lender, a
Certificate of the Borrower, dated the Closing Date, as to the
incumbency and signature of the officers of the Borrower executing any
Loan Document satisfactory in form and substance to the Administrative
Agent, executed by the President or any Vice President and the Secretary
or any Assistant Secretary of the Borrower.
(g) CORPORATE DOCUMENTS. The Administrative Agent shall have
received, with a counterpart for each Lender, true and complete copies
of the certificate of incorporation and by-laws of the Borrower,
certified as of the Closing Date as complete and correct copies thereof
by the Secretary or an Assistant Secretary of the Borrower.
(h) FEES. All fees payable by the Borrower to the
Administrative Agent and any Lender on or prior to the Closing Date
pursuant to this Agreement or pursuant to the Commitment Letter and Fee
Letter, each dated June 26, 1997, among The Chase Manhattan Bank, Chase
Securities Inc., as arranger of the Commitments and the Borrower shall
have been paid in full, in each case in the amounts and on the dates set
forth herein or therein.
(i) LEGAL OPINION. The Administrative Agent shall have
received, with a counterpart for each Lender, the executed legal opinion
of Xxxxxxx, Procter & Xxxx LLP, counsel to the Borrower, substantially
in the form of Exhibit D. Such legal opinion shall cover such other
matters incident to the transactions contemplated by this Agreement as
the Administrative Agent may reasonably require.
(j) PLEDGED STOCK AND OTHER EQUITY INTERESTS; TRANSFER
POWERS. The Administrative Agent shall have received any certificates
representing the shares of Capital Stock pledged pursuant to the Stock
Pledge Agreement, together with an undated transfer power, in form and
substance satisfactory to the Administrative Agent, for each such
certificate executed in blank by a duly authorized officer of the
pledgor thereof.
39
45
(k) ACTIONS TO PERFECT LIENS. The Administrative Agent shall
have received evidence in form and substance satisfactory to it that all
filings, recordings, registrations and other actions, including, without
limitation, the filing of duly executed financing statements on form
UCC-1, necessary or, in the opinion of the Administrative Agent,
desirable to perfect the Liens created by the Pledge Agreements shall
have been completed.
(l) LIEN SEARCHES. The Administrative Agent shall have
received the results of a recent search by a Person satisfactory to the
Administrative Agent, of the Uniform Commercial Code, judgement and tax
lien filings which may have been filed with respect to personal property
of the Borrower, and the results of such search shall be satisfactory to
the Administrative Agent.
(m) PRO FORMA BALANCE SHEET. The Administrative Agent shall
have received a PRO FORMA balance sheet of the Borrower as at June 30,
1997, after giving effect to the transactions contemplated hereby to be
consummated on the Closing Date and the most recent unaudited
consolidated financial statements of the Borrower and its subsidiaries.
(n) CONVERTIBLE PREFERRED STOCK. As of the Closing Date, the
Administrative Agent shall have received evidence reasonably
satisfactory to it that the Borrower shall have issued at least
$30,000,000 of convertible preferred stock or warrants to purchase
convertible preferred stock (the "CONVERTIBLE PREFERRED STOCK") upon
terms and conditions satisfactory to the Lenders for cash and/or as part
of the TBC Acquisition closing prior to or simultaneous with the Closing
Date.
(o) SENIOR SUBORDINATED BRIDGE FACILITY. The Administrative
Agent shall have received evidence reasonably satisfactory to it that
the Borrower shall have received financing pursuant to the Senior
Subordinated Credit Agreement in an amount equal to the lesser of (x)
$60,000,000 or (y) $90,000,000 minus the value of the Convertible
Preferred Stock, which Senior Subordinated Loans shall (a) be
subordinated in all respects to the Loans (except as otherwise
contemplated herein), and (b) otherwise be in form and substance
satisfactory to the Lenders.
(p) CONDITIONS TO TBC ACQUISITION. There shall be no
material conditions to the consummation of the TBC Acquisition which
have not been satisfied or waived with the prior consent of the
Administrative Agent, and there have been no material amendments to the
documentation relating to the TBC Acquisition without the prior consent
of the Administrative Agent.
(q) PURCHASE PRICE, FEES AND EXPENSES FOR TBC ACQUISITION.
The Administrative Agent shall have received satisfactory evidence that
(a) the aggregate consideration paid in connection with the TBC
Acquisition shall not exceed $300,000,000 in the aggregate and (b) the
fees and expenses to be incurred by the Borrower in connection with the
40
46
TBC Acquisition and the financing thereof shall not exceed $15,000,000
in the aggregate.
(r) CONSENTS, AUTHORIZATIONS AND FILINGS. All material
governmental and third party approvals necessary or advisable in
connection with the TBC Acquisition, the financing contemplated hereby
and the continuing operations of the Borrower and its subsidiaries
(after giving effect to the consummation of the TBC Acquisition) shall
have been obtained and be in full force and effect, and all applicable
waiting periods shall have expired without any action being taken or
threatened by any competent authority which would restrain, prevent or
otherwise impose material adverse conditions on the TBC Acquisition or
the financing thereof.
(s) CAPITAL STRUCTURE; CORPORATE STRUCTURE. The
Administrative Agent shall be satisfied that there have been no material
adverse changes in the capital structure or corporate structure of the
Borrower and its subsidiaries since the execution of definitive
documentation for the TBC Acquisition.
(t) PROJECTIONS. The Borrower shall have furnished to each
Lender a copy of financial projections for the period from 1997 through
2004 for the Borrower and its Subsidiaries. Such projections shall have
been, in the opinion of the Borrower, prepared on the basis of
reasonable assumptions and sound business principles.
6.2 CONDITIONS TO EACH LOAN. The agreement of each Lender to
make any Loan requested to be made by it on any date (including, without
limitation, its initial Loan but excluding any repricing or conversion of any
then outstanding Loan) is subject to the satisfaction of the following
conditions precedent:
(a) REPRESENTATIONS AND WARRANTIES. Each of the
representations and warranties made by the Borrower in or pursuant to
the Loan Documents shall be true and correct in all material respects on
and as of such date as if made on and as of such date; PROVIDED that (i)
representations and warranties made with reference to a specific date
shall remain true and correct as of such date and (ii) representations
and warranties shall not be required to remain true to the extent
changes have resulted from actions permitted hereunder.
(b) NO DEFAULT. No Default or Event of Default shall have
occurred and be continuing on such date or after giving effect to the
Loans requested to be made on such date.
(c) NOTICE OF BORROWING. The Administrative Agent shall have
received a notice of borrowing pursuant to subsection 3.2.
(d) USE OF PROCEEDS. A Responsible Officer shall have
delivered to the Administrative Agent a certificate to the effect that
the proceeds of such Loan will be
41
47
used in accordance with subsection 5.15 and specifying in reasonable
detail the proposed use of the proceeds thereof.
Each borrowing by the Borrower hereunder shall constitute a representation and
warranty by the Borrower as of the date thereof that the conditions contained in
this subsection have been satisfied.
SECTION 7. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments
remain in effect or any amount is owing to any Lender or the Administrative
Agent hereunder or under any other Loan Document, the Borrower shall and (except
in the case of delivery of financial information, reports and notices) shall
cause each of its Subsidiaries to:
7.1 FINANCIAL STATEMENTS. Furnish to the Administrative
Agent (which shall promptly furnish to the other Lenders):
(a) as soon as available, but in any event within 90 days
after the end of each fiscal year of the Borrower, copies of the
consolidated and consolidating balance sheet of the Borrower and its
Subsidiaries as at the end of such year and the related consolidated and
consolidating statements of income and retained earnings and of cash
flows for such year, and setting forth in each case in comparative form
the figures for the previous year and, in the case of the consolidated
statements, reported on without a "going concern" or like qualification
or exception, or qualification arising out of the scope of the audit, by
Coopers & Xxxxxxx or other independent certified public accountants of
nationally recognized standing; and
(b) as soon as available, but in any event not later than 45
days after the end of each of the first three quarterly periods of each
fiscal year of the Borrower, copies of the unaudited consolidated and
consolidating balance sheet of the Borrower and its Subsidiaries as at
the end of such quarter and the related unaudited consolidated and
consolidating statements of income and retained earnings and of cash
flows for such quarter and the portion of the fiscal year through the
end of such quarter, and setting forth in each case in comparative form
the figures for the previous year, certified by a Responsible Officer as
being fairly stated in all material respects (subject to normal year-end
audit adjustments);
all such financial statements shall be complete and correct in all material
respects and shall be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein and with prior
periods (subject, in the case of interim financial statements, to year end
adjustments and the absence of footnotes).
42
48
7.2 CERTIFICATES; OTHER INFORMATION. Furnish to the
Administrative Agent (which shall promptly furnish to the other Lenders):
(a) concurrently with the delivery of the financial
statements referred to in subsection 7.1(a), a certificate of the
independent certified public accountants reporting on such financial
statements stating that in making the examination necessary therefor no
knowledge was obtained of any Default or Event of Default specified in
subsection 9(c), except as specified in such certificate;
(b) concurrently with the delivery of the financial
statements referred to in subsections 7.1(a) and (b), (i) a copy of the
most recent audited (or, if later, unaudited) financial statements
received by the Borrower or any of its Subsidiaries of each of its
Management Companies and (ii) a certificate of a Responsible Officer
stating that, to the best of such Officer's knowledge, that such Officer
has obtained no knowledge of any Default or Event of Default except as
specified in such certificate;
(c) within five days after the same are filed, copies of all
financial statements and reports which the Borrower may make to, or file
with, the Securities and Exchange Commission or any successor or
analogous Governmental Authority;
(d) within 45 days after the end of each fiscal quarter of
the Borrower, a schedule analyzing changes in the assets under
management of the Borrower, its Subsidiaries and Management Companies to
the extent such changes are material, in each case prepared under the
direct supervision of the senior financial officer of the Borrower and
in form and substance satisfactory to the Administrative Agent;
(e) at the request of the Administrative Agent, a report
discussing the views of the Borrower concerning the recent performance
and near and intermediate term prospects of (i) the businesses in which
the Borrower and its Subsidiaries and Management Companies are
principally engaged and (ii) the Borrower and its Subsidiaries and
Management Companies, including a discussion of trends concerning assets
under management, advisory fees and competition and of strategic
initiatives by the Borrower and its Subsidiaries and Management
Companies (or, upon reasonable notice by the Administrative Agent, the
Borrower shall attend a meeting with the Lenders to discuss the
foregoing);
(f) within five Business Days after the consummation of any
Acquisition, other than the TBC Acquisition or an Acquisition of any
interest in a Person that is already a Subsidiary or a Management
Company and with respect to which the Borrower does not borrow
additional funds hereunder, and within 45 days after the consummation of
the TBC Acquisition (A) copies of the most recent audited (and, if
later, or, if audited statements are not available, unaudited) financial
statements of the Management Company which is the subject of such
Acquisition, (B) copies of the purchase agreement or other acquisition
document executed or to be executed by the Borrower or
43
49
any of its Subsidiaries in connection with the Acquisition, (C) an
unaudited PRO FORMA consolidated balance sheet of the Borrower and its
Subsidiaries as at a recent date but prepared as though the closing of
such Acquisition had occurred on or prior to such date and related PRO
FORMA calculations, indicating compliance on a PRO FORMA basis as at
such date and for the periods then ended with the financial covenants
set forth in subsection 8.1 and (D) a copy of the most recent Form ADV,
if any, filed under the Investment Advisers Act in respect to any
Management Company which is the subject of such Acquisition; and
(g) promptly, such additional financial and other
information as any Lender may, through the Administrative Agent, from
time to time reasonably request.
7.3 PAYMENT OF OBLIGATIONS. Pay, discharge or otherwise
satisfy at or before maturity or before they become delinquent, as the case may
be, all its obligations of whatever nature, except where the amount or validity
thereof is currently being contested in good faith by appropriate proceedings
and reserves in conformity with GAAP with respect thereto have been provided on
the books of the Borrower or its Subsidiaries, as the case may be and except
where the failure to do so could not have a Material Adverse Effect.
7.4 CONDUCT OF BUSINESS AND MAINTENANCE OF EXISTENCE.
Continue to engage in business of the same general type as now conducted and
purported to be conducted by it and preserve, renew and keep in full force and
effect its corporate existence and take all reasonable action to maintain all
rights, registrations, licenses, privileges and franchises necessary or
desirable in the normal conduct of its business (including, without limitation,
all such registrations under the Investment Advisers Act and all material
investment advisory agreements, distribution agreements and shareholding and
other administrative servicing contracts) except as otherwise permitted pursuant
to subsection 8.5 and except for failures which individually and in the
aggregate will not have a Material Adverse Effect; comply, and to the extent
reasonably within its control, cause each Management Company and Fund to comply,
with all Contractual Obligations and Requirements of Law except to the extent
that failure to comply therewith could not, in the aggregate, be reasonably
expected to have a Material Adverse Effect.
7.5 MAINTENANCE OF PROPERTY; INSURANCE. Keep all property
useful and necessary in its business in good working order and condition, except
where the failure to do so would not have a Material Adverse Effect; maintain
with financially sound and reputable insurance companies insurance on all its
property in at least such amounts and against at least such risks as are usually
insured against in the same general area by companies engaged in the same or a
similar business, except where the failure to do so could not have a Material
Adverse Effect; and furnish to the Administrative Agent, upon written request,
full information as to the insurance carried.
7.6 INSPECTION OF PROPERTY; BOOKS AND RECORDS; DISCUSSIONS.
Keep proper books of records and account in which full, true and correct entries
in all material respects in
44
50
conformity with GAAP and all Requirements of Law shall be made of all dealings
and transactions in relation to its business and activities, except where the
failure to do so would not have a Material Adverse Effect; and permit
representatives of any Lender to visit and inspect any of its properties and
examine and make abstracts from any of its books and records at any reasonable
time and as often as may reasonably be desired and upon at least three days
prior notice or such lesser period of time as may be acceptable to the Borrower
or the relevant Subsidiary, as the case may be, and to discuss the business,
operations, properties and financial and other condition of the Borrower and its
Subsidiaries with officers and employees of the Borrower and its Subsidiaries
and with its independent certified public accountants.
7.7 NOTICES. Promptly give notice to the Administrative
Agent and each Lender of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any
Contractual Obligation of the Borrower or any of its Subsidiaries or
(ii) litigation, investigation or proceeding which may exist at any time
between the Borrower or any of its Subsidiaries and any Governmental
Authority, which in either case, if not cured or if adversely
determined, as the case may be, could have a Material Adverse Effect;
(c) any litigation or proceeding affecting the Borrower or
any of its Subsidiaries or any "affiliated person" of the Borrower or
any of its Subsidiaries within the meaning of the Investment Company Act
in which the amount involved is $5,000,000 or more and not covered by
insurance or in which injunctive or similar relief is sought and which
could reasonably be expected to have a Material Adverse Effect;
(d) the following events, as soon as possible and in any
event within 30 days after the Borrower knows or has reason to know
thereof: (i) the occurrence or expected occurrence of any Reportable
Event with respect to any Plan, or any withdrawal from, or the
termination, Reorganization or Insolvency of any Multiemployer Plan or
(ii) the institution of proceedings or the taking of any other action by
the PBGC or the Borrower or any Commonly Controlled Entity or any
Multiemployer Plan with respect to the withdrawal from, or the
terminating, Reorganization or Insolvency of, any Plan;
(e) any suspension or termination of the registration of any
Subsidiary or Management Company of the Borrower as an investment
adviser under the Investment Advisers Act, or of any registration as a
broker-dealer under the Securities Acts or under any applicable state
statute which is material to the business thereof, or any cancellation
or expiration without renewal of any investment advisory agreement,
distribution agreement or shareholder or other administrative servicing
contract to which the Borrower or any of its Subsidiaries or Management
Companies is a party the revenues under which have exceeded in the most
recent fiscal year of the Borrower or any such Management Company, as
the case may be, $1,000,000; and
45
51
(f) any event which would have a Material Adverse Effect on
the Borrower and its Subsidiaries taken as a whole.
Each notice pursuant to this subsection shall be accompanied by a statement of a
Responsible Officer setting forth details of the occurrence referred to therein
and stating what action the Borrower proposes to take with respect thereto, if
any.
7.8 STOCK PLEDGES. Promptly upon the consummation of the
Acquisition of a Management Company or the formation of any new Subsidiary,
execute and deliver or cause to be executed and delivered to the Administrative
Agent a Pledge Agreement Supplement with respect to the pledge of the Capital
Stock of such Management Company or new Subsidiary, held, directly by the
Borrower or by any wholly owned Subsidiary of the Borrower, in form and
substance reasonably satisfactory to the Administrative Agent, together with
evidence in form and substance reasonably satisfactory to the Administrative
Agent that all deliveries, filings, recordings, registrations and other actions,
including, without limitation, the delivery of any certificates representing
such Capital Stock, together, in the case of stock certificates, with an undated
transfer power, in form and substance reasonably satisfactory to the
Administrative Agent, for each such certificate executed in blank by a duly
authorized officer of the pledgor thereof, and the filing of duly executed
financing statements on form UCC-1, necessary or, in the opinion of the
Administrative Agent, desirable to perfect the Liens created by such Pledge
Agreement Supplement shall have been completed.
7.9 GUARANTEES. In the case of any Subsidiary of the
Borrower which at any time is wholly owned, promptly upon the request of the
Administrative Agent, execute and deliver to the Administrative Agent, on behalf
of the Lenders, a guarantee of such Subsidiary, in form and substance
satisfactory to the Administrative Agent, with respect to the performance of the
obligations of the Borrower under this Agreement and the other Loan Documents.
SECTION 8. NEGATIVE COVENANTS
The Borrower hereby agrees that, from and after the Closing Date
and so long as the Commitments remain in effect or any amount is owing to any
Lender or the Administrative Agent hereunder or under any other Loan Document,
the Borrower shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly:
8.1 FINANCIAL CONDITION COVENANTS.
(a) MAINTENANCE OF NET WORTH. Permit Consolidated Net Worth
at any time during any period to be less than ********** (the remainder
of this section has been omitted pursuant to the confidential treatment
request referenced on the cover page hereto. The omitted information has
been filed separately with the Commission.**********
46
52
(b) INTEREST COVERAGE. Permit for any period of four
consecutive fiscal quarters ending during any "Test Period" set forth
below the ratio of (i) Consolidated EBITDA to (ii) Consolidated Interest
Expense to be less than the ratio set forth opposite such Test Period
below:
Test Period Interest Coverage Ratio
----------- -----------------------
********** (the remainder of this section has been omitted
pursuant to the confidential treatment request referenced on the cover page
hereto. The omitted information has been filed separately with the
Commission.**********
(c) LEVERAGE RATIO OF SENIOR INDEBTEDNESS TO ADJUSTED
EBITDA. Permit at any time during any "Test Period" set forth below the ratio of
(i) Senior Indebtedness to (ii) Adjusted EBITDA at the end of the most recently
completed fiscal quarter to exceed the ratio set forth opposite such Test Period
below:
Test Period Leverage Ratio
----------- --------------
********** (the remainder of this section has been omitted
pursuant to the confidential treatment request referenced on the cover page
hereto. The omitted information has been filed separately with the
Commission.**********
8.2 LIMITATION ON INDEBTEDNESS. Create, incur, assume or suffer
to exist any Indebtedness, except:
(a) Indebtedness of the Borrower under this Agreement and
the other Loan Documents;
(b) unsecured Indebtedness of any Subsidiary owing to the
Borrower or any other Subsidiary or secured Indebtedness of any Subsidiary owing
to the Borrower;
(c) Indebtedness of the Borrower or any of its Subsidiaries
incurred to finance its working capital (or the working capital of any
Subsidiary of the Borrower) in an aggregate principal amount not exceeding as to
it $1,000,000 at any time outstanding;
(d) Indebtedness of the Borrower or any of its Subsidiaries
incurred to finance its acquisition of fixed or capital assets (whether pursuant
to a deferred purchase arrangement with a vendor, a loan, a Financing Lease or
otherwise) in an aggregate principal amount not exceeding as to it $200,000 at
any time outstanding;
(e) Indebtedness of a Person which becomes a Subsidiary
after the date hereof, PROVIDED that (i) such indebtedness existed at the time
such Person became a Subsidiary and was not created in anticipation thereof and
(ii) immediately after giving effect to the
47
53
acquisition of such Person by the Borrower no Default or Event of
Default shall have occurred and be continuing;
(f) Indebtedness in respect of (i) the Senior Subordinated
Credit Agreement or the Senior Subordinated Indenture or evidenced by
the Senior Subordinated Notes; PROVIDED that such Indebtedness shall not
be extended, renewed, replaced, refinanced or otherwise amended, except
(x) by the incurrence of Indebtedness under the Senior Subordinated
Indenture or evidenced by Senior Subordinated Notes or (y) for
amendments permitted by subsection 8.11, (ii) the Subordinated
Contingent Payment Notes and (iii) other Subordinated Indebtedness;
(g) Indebtedness of the Borrower and its Subsidiaries
(including, without limitation, TBC and GeoCapital, LLC) existing on the
date hereof, as described on Schedule 8.2(g);
(h) Indebtedness of the type described in clause (g) of the
definition of Indebtedness incurred by the Borrower or any of its
Subsidiaries in the ordinary course of business with reputable financial
institutions and not for speculative purposes;
(i) Indebtedness of the Borrower or any of its Subsidiaries
incurred to the seller of an interest in any Management Company or
Subsidiary; and
(j) Indebtedness in the nature of deferred compensation to
employees in an aggregate principal amount not exceeding as to the
Borrower and its Subsidiaries (i) $1,000,000 at any time outstanding
prior to the consummation of an Initial Public Offering and (ii)
$5,000,000 at any time outstanding thereafter.
8.3 LIMITATION ON LIENS. Create, incur, assume or suffer to
exist any Lien upon any of its property, assets or revenues, whether now
owned or hereafter acquired, except for:
(a) Liens for taxes, assessments and other governmental
charges not yet due or which are being contested in good faith by
appropriate proceedings, PROVIDED that adequate reserves with respect
thereto are maintained on the books of the Borrower or its Subsidiaries,
as the case may be, in conformity with GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of
business which are not overdue for a period of more than 60 days or
which are being contested in good faith by appropriate proceedings;
(c) pledges or deposits in connection with workers'
compensation, unemployment insurance and other social security
legislation;
48
54
(d) deposits to secure the performance of bids, trade
contracts (other than for borrowed money), leases, statutory
obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of
business;
(e) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business which, in the
aggregate, are not substantial in amount and which do not in any case
materially detract from the value of the property subject thereto or
materially interfere with the ordinary conduct of the business of the
Borrower or such Subsidiary;
(f) Liens securing Indebtedness of the Borrower and its
Subsidiaries permitted by subsection 8.2(d) incurred to finance the
acquisition of fixed or capital assets, PROVIDED that (i) such Liens
shall be created substantially simultaneously with the acquisition of
such fixed or capital assets, (ii) such Liens do not at any time
encumber any property other than the property financed by such
Indebtedness, (iii) the amount of Indebtedness secured thereby is not
increased and (iv) the principal amount of Indebtedness secured by such
Lien shall at no time exceed the purchase price of such property;
(g) Liens on the property or assets of a Person which
becomes a Subsidiary after the date hereof securing Indebtedness
permitted by subsection 8.2(e), PROVIDED that (i) such Liens existed at
the time such Person became a Subsidiary and were not created in
anticipation thereof, (ii) any such Lien is not spread to cover any
property or assets of such Person after the time such Person becomes a
Subsidiary, and (iii) the amount of Indebtedness secured thereby is not
increased;
(h) Liens arising by reason of any judgment, decree or order
of any court or other Governmental Authority, (i) if appropriate legal
proceedings which have been initiated for the review of such judgment,
decree or order are being diligently prosecuted and shall not have been
finally terminated or the period within which such proceedings may be
initiated shall not have expired or (ii) if such judgment, decree or
order shall have been discharged, within 45 days of the entry thereof or
execution thereof has been stayed pending appeal;
(i) Liens created pursuant to the Pledge Agreements
(including, without limitation, Liens to secure obligations with respect
to letters of credit permitted under subsection 8.4);
(j) Liens existing, or provided for under arrangements
existing, as of the date hereof as described on Schedule 8.3(j); and
(k) Liens permitted under subsection 4 of the Stock Pledge
Agreement and subsection 3 of each of the Partnership Pledge Agreement
and the LLC Pledge Agreement.
49
55
8.4 LIMITATION ON GUARANTEE OBLIGATIONS. Create, incur,
assume or suffer to exist any Guarantee Obligation except guarantees by the
Borrower or any Subsidiary or Management Company of obligations of any of the
Subsidiaries, which obligations are otherwise permitted under this Agreement,
and except for (a) other Guarantee Obligations not exceeding $1,500,000 in the
aggregate at any time, (b) Guarantee Obligations which constitute Indebtedness
permitted under subsection 8.2 or (c) Guarantee Obligations in the nature of
letters of credit issued by any Lender in an aggregate principal amount not
exceeding $2,500,000.
8.5 LIMITATION ON FUNDAMENTAL CHANGES. Enter into any
merger, consolidation or amalgamation, or liquidate, wind up or dissolve itself
(or suffer any liquidation or dissolution), or convey, sell, lease, assign,
transfer or otherwise dispose of, all or substantially all of its property,
business or assets (each a "disposition"), or make any material change in its
present method of conducting business; PROVIDED that, unless, (i) with respect
to a merger, consolidation or amalgamation of a Subsidiary of the Borrower, if
prior to such event the Borrower owned at least a 51% ownership interest, the
Borrower shall continue to own at least a 51% ownership interest in such
Subsidiary or the surviving Person of such merger, consolidation or amalgamation
or, after such event it shall have no ownership interest, (ii) with respect to
the liquidation, winding up or dissolution of a direct or indirect Subsidiary of
the Borrower, the assets of such Subsidiary shall have been transferred to the
Borrower or a Subsidiary of the Borrower and the other shareholders, partners or
members of a Subsidiary, or another Subsidiary of the Borrower, and (iii) with
respect to any disposition described above, the Net Proceeds thereof shall have
been applied as set forth in subsection 4.2 to the extent required.
8.6 LIMITATION ON SALE OF ASSETS. Convey, sell, lease,
assign, transfer or otherwise dispose (including in connection with sale
leaseback transactions) of any of its property, business or assets (including,
without limitation, receivables and leasehold interests), whether now owned or
hereafter acquired, or, in the case of any Subsidiary, issue or sell any shares
of such Subsidiary's Capital Stock to any Person other than the Borrower or any
wholly owned Subsidiary, except:
(a) the sale or other disposition of obsolete or worn out
property in the ordinary course of business;
(b) the sale or other disposition of any property in the
ordinary course of business;
(c) the sale or discount without recourse of accounts
receivable arising in the ordinary course of business in connection with
the compromise or collection thereof;
(d) the sale, issuance or other disposition of the Capital
Stock or other ownership interest of any Subsidiary of the Borrower or
of a Management Company in which the Borrower owns an ownership interest
to partners, officers or directors of such Subsidiary or Management
Company; provided that, if prior to such sale, issuance or
50
56
disposition, the Borrower owns in excess of a 50% ownership interest in
such Subsidiary or Management Company, the Borrower shall at all times
continue to own in excess of a 50% ownership interest in such Subsidiary
or Management Company or after such sale, issuance or disposition shall
have no ownership interest; and
(e) the sale, contribution or other transfer of (i) all or
substantially all the Capital Stock of a Subsidiary or Management
Company (including both Capital Stock held by the Borrower and its
Subsidiaries and by the other holders of Capital Stock of such
Subsidiary or Management Company), or (ii) all or substantially all the
Assets of a Subsidiary or Management Company, in each case, to another
Subsidiary or Management Company in a transaction or series of related
transactions which results in the Borrower having at least a
substantially equivalent economic interest in, and a substantially
equivalent level of management and control over, the Subsidiary or
Management Company.
8.7 LIMITATION ON LEASES. Permit the amount paid by the
Borrower for lease obligations under operating leases to which the Borrower is a
party (including any such leases entered into in connection with sale leaseback
transactions) for any fiscal year of the Borrower to exceed $750,000 or permit a
Subsidiary of the Borrower to make any such payment in respect of lease
obligations except to the extent that any such payment is made out of that
portion of its revenues designated as Operating Cash Flow (and not Free Cash
Flow) under the relevant Revenue Sharing Agreement.
8.8 LIMITATION ON DIVIDENDS. Declare or pay any dividend
(other than dividends payable solely in common stock of the Borrower) on, or
make any payment on account of, or set apart assets for a sinking or other
analogous fund for, the purchase, redemption, defeasance, retirement or other
acquisition of, any shares of any class of Capital Stock of the Borrower or any
warrants or options to purchase any such Capital Stock, whether now or hereafter
outstanding, or make any other distribution in respect thereof, either directly
or indirectly, whether in cash or property or in obligations of the Borrower or
any Subsidiary in an aggregate amount not exceeding as to the Borrower and its
Subsidiaries $500,000; PROVIDED, HOWEVER, that the Borrower may make the
payments described in or contemplated by Section 1.5 of the Amended and Restated
Stockholders Agreement dated as of August 15, 1997 among the Borrower and the
stockholders of the Borrower party thereto and may make the deposit of funds
into escrow described in and contemplated by such Section 1.5 and the funds so
deposited may be released pursuant to the terms of the Escrow Agreement dated as
of September [ ], 1997.
8.9 LIMITATION ON CAPITAL EXPENDITURES. Make or commit to
make (by way of the acquisition of securities of a Person or otherwise) any
expenditure in respect of the purchase or other acquisition of fixed or capital
assets (excluding any such asset acquired in connection with normal replacement
and maintenance programs properly charged to current operations) except in the
case of the Borrower, for expenditures in the ordinary course of business not
exceeding, in the aggregate for the Borrower during any fiscal year of the
Borrower
51
57
$2,500,000 and except in the case of a Subsidiary of the Borrower, expenditures
in respect of fixed or capital assets to the extent that such expenditures are
made out of that portion of its revenues designated as Operating Cash Flow (and
not Free Cash Flow) under the relevant Revenue Sharing Agreement.
8.10 LIMITATION ON INVESTMENTS, LOANS AND ADVANCES. Make any
advance, loan, extension of credit or capital contribution to, or purchase any
stock, bonds, notes, debentures or other securities of or any assets
constituting a business unit of, or make any other investment in, any Person,
except:
(a) extensions of trade credit in the ordinary course of
business;
(b) investments in cash equivalents, including any such
investment that may be readily sold or otherwise liquidated in any Fund
for which any Subsidiary or other Management Company provides
management, advisory or administrative services and which principally
invests in cash equivalents;
(c) any investment in or loan or advance to a Management
Company or a Subsidiary or in any Person which, after giving effect to
such investment, will become a Subsidiary or a Management Company, if,
after giving effect to such investment, no Default or Event of Default
shall have occurred and be continuing;
(d) loans to officers of the Borrower or its Subsidiaries
listed on Schedule 8.10 in aggregate principal amounts outstanding not
to exceed the respective amounts set forth for such officers on said
schedule;
(e) (i) loans and advances to employees of the Borrower or
its Subsidiaries for travel, entertainment and relocation expenses in
the ordinary course of business in an aggregate amount for the Borrower
and its Subsidiaries not to exceed $150,000 at any one time outstanding
(other than as permitted in subsection 8.10(f)) and (ii) in the case of
a Subsidiary of the Borrower, loans and advances to employees for
travel, entertainment and relocation expenses in the ordinary course of
business to the extent that such loans and advances are made out of that
portion of its revenues designated as Operating Cash Flow (and not Free
Cash Flow) under the relevant Revenue Sharing Agreement; and
(f) to the extent made out of the portion of the revenues of
a Subsidiary of the Borrower which is designated as Operating Cash Flow
(and not Free Cash Flow) under the relevant Revenue Sharing Agreements.
8.11 LIMITATION ON OPTIONAL PAYMENTS AND MODIFICATIONS OF
DEBT INSTRUMENTS AND OTHER DOCUMENTS (a) Except as provided in subsection
8.11(b), make any payment (including any cash payment of interest) or prepayment
on or redemption, defeasance or purchase of any Subordinated Indebtedness;
PROVIDED, HOWEVER, as long as there is no Default or Event of
52
58
Default, the Borrower may make payments due on the Subordinated Contingent
Payment Notes and Subordinated Deferred Payment Note as required thereunder and
up to $10,000,000 in the aggregate of payments (including any cash payment of
interest) and prepayments on or redemption, defeasance or purchase of
Subordinated Indebtedness.
(b) Make any optional payment or prepayment on or repurchase
or redemption of the Senior Subordinated Credit Agreement or any Senior
Subordinated Notes (other than, to the extent permitted thereunder, with the
proceeds of an Initial Public Offering or, in the case of the Senior
Subordinated Credit Agreement, with the proceeds of any offering of Senior
Subordinated Notes or other Subordinated Indebtedness), including, without
limitation, any payments on account of, or for a sinking or other analogous fund
for, the repurchase, redemption, defeasance or other acquisition thereof, except
mandatory payments of principal, interest, fees and expenses required by the
terms of the Senior Subordinated Credit Agreement, the Senior Subordinated
Notes, the Senior Subordinated Facility Documents, the Senior Subordinated Notes
Documents and the Senior Subordinated Note Indenture, as the case may be, only
to the extent permitted under the subordination provisions, if any, applicable
thereto.
(c) In the event of the occurrence of a Change of Control
(as defined in the Senior Subordinated Note Indenture), repurchase the Senior
Subordinated Notes or any portion thereof, unless the Borrower shall have (i)
made payment in full of the Loans and any other amounts then due and owing to
any Lender or the Administrative Agent hereunder and under any Note on terms
reasonably satisfactory to the Administrative Agent or (ii) made an offer to pay
the Loans, and any amounts then due and owing to each Lender and the
Administrative Agent hereunder and under any Note in respect of each Lender and
shall have made payment in full thereof to each such Lender or the
Administrative Agent which has accepted such offer.
(d) Amend, supplement, waive or otherwise modify any of the
provisions of any of the Senior Subordinated Facility Notes and Senior
Subordinated Notes or the Senior Subordinated Facility Documents or the Senior
Subordinated Notes Documents:
(i) which amends or modifies the subordination provisions,
if any, contained therein;
(ii) which shortens the fixed maturity or increases the
principal amount of, or increases the rate or shortens the time of
payment of interest on, or increases the amount or shortens the time of
payment of any principal or premium payable whether at maturity, at a
date fixed for prepayment or by acceleration or otherwise of the
Indebtedness under the Senior Subordinated Credit Facility or evidenced
by the Senior Subordinated Notes, or increases the amount of, or
accelerates the time of payment of, any fees or other amounts payable in
connection therewith;
(iii) which relates to any material affirmative or negative
covenants or any events of default or remedies thereunder and the effect
of which is to subject the Borrower or any of its Subsidiaries, to any
more onerous or more restrictive provisions; or
53
59
(iv) which otherwise adversely affects the interests of the Lenders as
senior creditors with respect to the Senior Subordinated Credit Facility
or the Senior Subordinated Notes or the interests of the Lenders under
this Agreement or any other Loan Document in any material respect.
8.12 RESTRICTION ON AMENDMENTS TO REVENUE SHARING AGREEMENTS.
Amend or modify the terms of a Revenue Sharing Agreement such that, as a result
of such amendment or modification a Material Adverse Effect would occur.
8.13 LIMITATION ON TRANSACTIONS WITH AFFILIATES. Except as
described on Schedule 8.13, enter into any transaction, including, without
limitation, any purchase, sale, lease or exchange of property or the rendering
of any service, with any Affiliate unless such transaction is (a) otherwise
expressly permitted under this Agreement or (b) in the ordinary course of the
Borrower's or such Subsidiary's business and upon fair and reasonable terms no
less favorable to the Borrower or such Subsidiary, as the case may be, than it
would obtain in a comparable arm's length transaction with a Person which is not
an Affiliate, provided that (i) transactions between the Borrower and its
Subsidiaries and (ii) transactions between the Borrower or any of its
Subsidiaries or any officer, director, individual stockholder, partner or member
(or an entity wholly owned by such an individual) and any Fund or other
Investment Company sponsored by the Borrower or any Subsidiary or for which the
Borrower or any Subsidiary provides advisory, administrative, supervisory,
management, consulting or similar services, that are otherwise permissible under
the Investment Company Act, the Investment Advisers Act and the applicable
management contracts shall be permitted under this subsection 8.13.
8.14 LIMITATION ON CHANGES IN FISCAL YEAR. Permit the fiscal
year of the Borrower to end on a day other than December 31.
SECTION 9. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any Loan
when due in accordance with the terms thereof or hereof; or the Borrower
shall fail to pay any interest on any Loan, or any other amount payable
hereunder, within five days after any such interest or other amount
becomes due in accordance with the terms thereof or hereof; or
(b) Any representation or warranty made or deemed made by
the Borrower or any of its Subsidiaries herein or in any other Loan
Document or which is contained in any certificate, document or financial
or other statement furnished by it at any time under or in connection
with this Agreement or any such other Loan Document shall prove to have
been incorrect in any material respect on or as of the date made or
deemed made; or
54
60
(c) The Borrower or any of its Subsidiaries shall default in
the observance or performance of any agreement contained in Section 6
and Section 5 of the Stock Pledge Agreement and Section 4 and Section 5
of each of the Partnership Pledge Agreement and the LLC Pledge
Agreement; or
(d) The Borrower or any of its Subsidiaries shall default in
the observance or performance of any other agreement contained in this
Agreement or any other Loan Document (other than as provided in
paragraphs (a) through (c) of this Section), and such default shall
continue unremedied for a period of 30 days; or
(e) The Borrower or any of its Subsidiaries shall (i)
default in any payment of principal of or interest on any Indebtedness
(other than the Loans) or in the payment of any Guarantee Obligation, in
either case in an outstanding principal amount in excess of $500,000,
beyond the period of grace (not to exceed 30 days), if any, provided in
the instrument or agreement under which such Indebtedness or Guarantee
Obligation was created; or (ii) default in the observance or performance
of any other agreement or condition relating to any such Indebtedness or
Guarantee Obligation or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event shall occur
or condition exist, the effect of which default or other event or
condition is to cause, or to permit the holder or holders of such
Indebtedness or beneficiary or beneficiaries of such Guarantee
Obligation (or a trustee or agent on behalf of such holder or holders or
beneficiary or beneficiaries) to cause, with the giving of notice if
required, such Indebtedness to become due prior to its stated maturity
or such Guarantee Obligation to become payable; or
(f) (i) The Borrower or any of its Subsidiaries shall
commence any case, proceeding or other action (A) under any existing or
future law of any jurisdiction, domestic or foreign, relating to
bankruptcy, insolvency, reorganization or relief of debtors, seeking to
have an order for relief entered with respect to it, or seeking to
adjudicate it a bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution,
composition or other relief with respect to it or its debts, or (B)
seeking appointment of a receiver, trustee, custodian, conservator or
other similar official for it or for all or any substantial part of its
assets, or the Borrower or any of its Subsidiaries shall make a general
assignment for the benefit of its creditors; or (ii) there shall be
commenced against the Borrower or any of its Subsidiaries any case,
proceeding or other action of a nature referred to in clause (i) above
which (A) results in the entry of an order for relief or any such
adjudication or appointment or (B) remains undismissed, undischarged or
unbonded for a period of 60 days; or (iii) there shall be commenced
against the Borrower or any of its Subsidiaries any case, proceeding or
other action seeking issuance of a warrant of attachment, execution,
distraint or similar process against all or any substantial part of its
assets which results in the entry of an order for any such relief which
shall not have been vacated, discharged, or stayed or bonded pending
appeal within 60 days from the entry thereof; or (iv) the Borrower or
any of its Subsidiaries shall take any action in
55
61
furtherance of, or indicating its consent to, approval of, or
acquiescence in, any of the acts set forth in clause (i), (ii), or (iii)
above; or (v) the Borrower or any of its Subsidiaries shall generally
not, or shall be unable to, or shall admit in writing its inability to,
pay its debts as they become due; or
(g) (i) Any Person shall engage in any "prohibited
transaction" (as defined in Section 406 of ERISA or Section 4975 of the
Code) involving any Plan maintained by the Borrower or any of its
Subsidiaries, (ii) any "accumulated funding deficiency" (as defined in
Section 302 of ERISA), whether or not waived, shall exist with respect
to any Plan maintained by the Borrower or any of its Subsidiaries, (iii)
a Reportable Event shall occur with respect to, or proceedings shall
commence to have a trustee appointed, or a trustee shall be appointed,
to administer or to terminate, any Single Employer Plan, which
Reportable Event or commencement of proceedings or appointment of a
trustee is, in the reasonable opinion of the Required Lenders, likely to
result in the termination of such Plan for purposes of Title IV of
ERISA, (iv) any Single Employer Plan shall terminate for purposes of
Title IV of ERISA, (v) the Borrower or any Commonly Controlled Entity
shall, or in the reasonable opinion of the Required Lenders is likely
to, incur any liability in connection with a withdrawal from, or the
Insolvency or Reorganization of, a Multiemployer Plan or (vi) any other
event or condition shall occur or exist, with respect to a Plan; and in
each case in clauses (i) through (vi) above, such event or condition,
together with all other such events or conditions, if any, could have a
Material Adverse Effect; or
(h) One or more judgments or decrees shall be entered
against the Borrower or any of its Subsidiaries involving in the
aggregate a liability (not paid or fully covered by insurance or
indemnification) of $5,000,000 or more, and all such judgments or
decrees shall not have been vacated, discharged, stayed or bonded
pending appeal within 60 days from the entry thereof; or
(i) (i) Any of the Pledge Agreements shall cease, for any
reason, to be in full force and effect, or the Borrower or any of its
Subsidiaries party thereto shall so assert or (ii) the Lien created by
any of the Pledge Agreements shall cease to be enforceable and of the
same effect and priority purported to be created thereby; or
(j) A Change of Control shall have occurred.
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) of this Section with respect to the
Borrower, automatically the Commitments shall immediately terminate and the
Loans hereunder (with accrued interest thereon) and all other amounts owing
under this Agreement shall immediately become due and payable, and (B) if such
event is any other Event of Default, either or both of the following actions may
be taken: (i) with the consent of the Required Lenders, the Administrative Agent
may, or upon the request of the Required Lenders, the Administrative Agent
shall, by notice to the Borrower declare the Commitments to be terminated
forthwith, whereupon the
56
62
Commitments shall immediately terminate; and (ii) with the consent of the
Required Lenders, the Administrative Agent may, or upon the request of the
Required Lenders, the Administrative Agent shall, by notice to the Borrower,
declare the Loans hereunder (with accrued interest thereon) and all other
amounts owing under this Agreement to be due and payable forthwith, whereupon
the same shall immediately become due and payable. Except as expressly provided
above in this Section, presentment, demand, protest and all other notices of any
kind are hereby expressly waived.
SECTION 10. THE ADMINISTRATIVE AGENT
10.1 APPOINTMENT. Each Lender hereby irrevocably designates
and appoints the Administrative Agent as the agent of such Lender under this
Agreement and the other Loan Documents, and each such Lender irrevocably
authorizes the Administrative Agent, in such capacity, to take such action on
its behalf under the provisions of this Agreement and the other Loan Documents
and to exercise such powers and perform such duties as are expressly delegated
to the Administrative Agent by the terms of this Agreement and the other Loan
Documents, together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in this Agreement, the
Administrative Agent shall not have any duties or responsibilities, except those
expressly set forth herein, or any fiduciary relationship with any Lender, and
no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan Document or
otherwise exist against the Administrative Agent.
10.2 DELEGATION OF DUTIES. The Administrative Agent may
execute any of its duties under this Agreement and the other Loan Documents by
or through agents or attorneys-in-fact and shall be entitled to advice of
counsel concerning all matters pertaining to such duties. The Administrative
Agent shall not be responsible for the negligence or misconduct of any agents or
attorneys in-fact selected by it with reasonable care.
10.3 EXCULPATORY PROVISIONS. Neither the Administrative Agent
nor any of its officers, directors, employees, agents, attorneys-in-fact or
Affiliates shall be (i) liable for any action lawfully taken or omitted to be
taken by it or such Person under or in connection with this Agreement or any
other Loan Document (except for its or such Person's own gross negligence or
willful misconduct) or (ii) responsible in any manner to any of the Lenders for
any recitals, statements, representations or warranties made by the Borrower or
any officer thereof contained in this Agreement or any other Loan Document or in
any certificate, report, statement or other document referred to or provided for
in, or received by the Administrative Agent under or in connection with, this
Agreement or any other Loan Document or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any other Loan
Document or for any failure of the Borrower to perform its obligations hereunder
or thereunder. The Administrative Agent shall not be under any obligation to any
Lender to ascertain or to inquire as to the observance or performance of any of
the agreements
57
63
contained in, or conditions of, this Agreement or any other Loan Document, or to
inspect the properties, books or records of the Borrower.
10.4 RELIANCE BY ADMINISTRATIVE AGENT. The Administrative
Agent shall be entitled to rely, and shall be fully protected in relying, upon
any Note, writing, resolution, notice, consent, certificate, affidavit, letter,
telecopy, telex or teletype message, statement, order or other document or
conversation believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons and upon advice and statements of
legal counsel (including, without limitation, counsel to the Borrower),
independent accountants and other experts selected by the Administrative Agent.
The Administrative Agent may deem and treat the payee of any Note as the owner
thereof for all purposes unless a written notice of assignment, negotiation or
transfer thereof shall have been filed with the Administrative Agent. The
Administrative Agent shall be fully justified in failing or refusing to take any
action under this Agreement or any other Loan Document unless it shall first
receive such advice or concurrence of the Required Lenders as it deems
appropriate or it shall first be indemnified to its satisfaction by the Lenders
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action. The Administrative Agent shall
in all cases be fully protected in acting, or in refraining from acting, under
this Agreement and the other Loan Documents in accordance with a request of the
Required Lenders, and such request and any action taken or failure to act
pursuant thereto shall be binding upon all the Lenders and all future holders of
the Loans.
10.5 NOTICE OF DEFAULT. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default or Event of
Default hereunder unless the Administrative Agent has received notice from a
Lender or the Borrower referring to this Agreement, describing such Default or
Event of Default and stating that such notice is a "notice of default". In the
event that the Administrative Agent receives such a notice, the Administrative
Agent shall give notice thereof to the Lenders, or, if such notice is received
from a Lender, to the Borrower. The Administrative Agent shall take such action
with respect to such Default or Event of Default as shall be reasonably directed
by the Required Lenders; PROVIDED that unless and until the Administrative Agent
shall have received such directions, the Administrative Agent may (but shall not
be obligated to) take such action, or refrain from taking such action, with
respect to such Default or Event of Default as it shall deem advisable in the
best interests of the Lenders.
10.6 NON-RELIANCE ON ADMINISTRATIVE AGENT AND OTHER LENDERS.
Each Lender expressly acknowledges that neither the Administrative Agent nor any
of its officers, directors, employees, agents, attorneys-in-fact or Affiliates
has made any representations or warranties to it and that no act by the
Administrative Agent hereinafter taken, including any review of the affairs of
the Borrower, shall be deemed to constitute any representation or warranty by
the Administrative Agent to any Lender. Each Lender represents to the
Administrative Agent that it has, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property, financial and other
58
64
condition and creditworthiness of the Borrower and made its own decision to make
its Loans hereunder and enter into this Agreement. Each Lender also represents
that it will, independently and without reliance upon the Administrative Agent
or any other Lender, and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this Agreement and
the other Loan Documents, and to make such investigation as it deems necessary
to inform itself as to the business, operations, property, financial and other
condition and creditworthiness of the Borrower. Except for notices, reports and
other documents expressly required to be furnished to the Lenders by the
Administrative Agent hereunder, the Administrative Agent shall not have any duty
or responsibility to provide any Lender with any credit or other information
concerning the business, operations, property, condition (financial or
otherwise), prospects or creditworthiness of the Borrower which may come into
the possession of the Administrative Agent or any of its officers, directors,
employees, agents, attorneys-in-fact or Affiliates.
10.7 INDEMNIFICATION. The Lenders agree to indemnify the
Administrative Agent in its capacity as such (to the extent not reimbursed by
the Borrower and without limiting the obligation of the Borrower to do so),
ratably according to their respective Commitment Percentages in effect on the
date on which indemnification is sought (or, if indemnification is sought after
the date upon which the Commitments shall have terminated and the Loans shall
have been paid in full, ratably in accordance with their Commitment Percentages
immediately prior to such date), from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind whatsoever which may at any time
(including, without limitation, at any time following the payment of the Loans)
be imposed on, incurred by or asserted against the Administrative Agent in any
way relating to or arising out of, the Commitments, this Agreement, any of the
other Loan Documents or any documents contemplated by or referred to herein or
therein or the transactions contemplated hereby or thereby or any action taken
or omitted by the Administrative Agent under or in connection with any of the
foregoing; PROVIDED that no Lender shall be liable for the payment of any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting solely from the
Administrative Agent's gross negligence or willful misconduct. The agreements in
this subsection shall survive the payment of the Loans and all other amounts
payable hereunder.
10.8 ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY. The
Administrative Agent and its Affiliates may make loans to, accept deposits from
and generally engage in any kind of business with the Borrower as though the
Administrative Agent were not the agent hereunder and under the other Loan
Documents. With respect to the Loans made by it, the Administrative Agent shall
have the same rights and powers under this Agreement and the other Loan
Documents as any Lender and may exercise the same as though it were not the
Administrative Agent, and the terms "Lender" and "Lenders" shall include the
Administrative Agent in its individual capacity.
59
65
10.9 SUCCESSOR ADMINISTRATIVE AGENT. The Administrative Agent
may resign as Administrative Agent upon 30 days' notice to the Lenders. If the
Administrative Agent shall resign as Administrative Agent under this Agreement
and the other Loan Documents, then the Required Lenders shall appoint from among
the Lenders a successor agent for the Lenders, which successor agent shall be
approved by the Borrower; provided that, in the event such Lenders are unable to
agree upon such successor, the resigning Administrative Agent shall appoint a
successor agent from the existing Lenders, whereupon such successor agent shall
succeed to the rights, powers and duties of the Administrative Agent, and the
term "Administrative Agent" shall mean such successor agent effective upon such
appointment and approval, and the former Administrative Agent's rights, powers
and duties as Administrative Agent shall be terminated, without any other or
further act or deed on the part of such former Administrative Agent or any of
the parties to this Agreement or any holders of the Loans. After any retiring
Administrative Agent's resignation as Administrative Agent, the provisions of
this Section 10 shall inure to its benefit as to any actions taken or omitted to
be taken by it while it was Administrative Agent under this Agreement and the
other Loan Documents.
SECTION 11. MISCELLANEOUS
11.1 AMENDMENTS AND WAIVERS. Neither this Agreement nor any
other Loan Document, nor any terms hereof or thereof may be amended,
supplemented or modified except in accordance with the provisions of this
subsection. The Required Lenders may, or, with the written consent of the
Required Lenders, the Administrative Agent may, from time to time, (a) enter
into with the Borrower written amendments, supplements or modifications hereto
and to the other Loan Documents for the purpose of adding any provisions to this
Agreement or the other Loan Documents or changing in any manner the rights of
the Lenders or of the Borrower hereunder or thereunder or (b) waive, on such
terms and conditions as the Required Lenders or the Administrative Agent, as the
case may be, may specify in such instrument, any of the requirements of this
Agreement or the other Loan Documents or any Default or Event of Default and its
consequences; PROVIDED, HOWEVER, that no such waiver and no such amendment,
supplement or modification shall (i) reduce the amount or extend the scheduled
date of final maturity of any Loan, or reduce the stated rate of any interest or
fee payable hereunder or extend the scheduled date of any payment thereof or
increase the amount or extend the expiration date of any Lender's Commitment, in
each case without the consent of each Lender directly affected thereby, or (ii)
amend, modify or waive any provision of this subsection or reduce the percentage
specified in the definition of Required Lenders, or consent to the assignment or
transfer by the Borrower of any of its rights and obligations under this
Agreement and the other Loan Documents or release all or substantially all of
the Collateral or Pledged Collateral, in each case without the written consent
of all the Lenders, (iii) amend, modify or waive any provision of Section 10
without the written consent of the then Administrative Agent, (iv) change the
allocation among the Tranche A Term Loans and Tranche B Term Loans of
prepayments to be made pursuant to subsections 4.1 and 4.2 or waive or amend any
provision of subsection 4.2 without the prior written consent of (1) Lenders
holding more than 50% of the aggregate outstanding principal amount of the
Tranche
60
66
A Term Loans and (2) Lenders holding more than 50% of the aggregate outstanding
principal amount of the Tranche B Term Loans, (v) change the application of
prepayments of Tranche A Term Loans pursuant to subsections 4.1 and 4.2 without
the prior written consent of Lenders holding more than 50% of the aggregate
outstanding principal amount of the Tranche A Term Loans or (vi) change the
application of prepayments of Tranche B Term Loans pursuant to subsections 4.1
and 4.2 without the prior written consent of Lenders holding more than 50% of
the aggregate outstanding principal amount of the Tranche B Term Loans. Any such
waiver and any such amendment, supplement or modification shall apply equally to
each of the Lenders and shall be binding upon the Borrower, the Lenders, the
Administrative Agent and all future holders of the Loans. In the case of any
waiver, the Borrower, the Lenders and the Administrative Agent shall be restored
to their former positions and rights hereunder and under the other Loan
Documents, and any Default or Event of Default waived shall be deemed to be
cured and not continuing; no such waiver shall extend to any subsequent or other
Default or Event of Default or impair any right consequent thereon.
11.2 NOTICES. All notices, requests and demands to or upon
the respective parties hereto to be effective shall be in writing (including by
facsimile transmission), and, unless otherwise expressly provided herein, shall
be deemed to have been duly given or made when delivered, or 5 days after being
deposited in the mail, postage prepaid, or, in the case of telecopy notice, when
received, addressed as follows in the case of the Borrower and the
Administrative Agent, and as set forth in Schedule I in the case of the other
parties hereto, or to such other address as may be hereafter notified by the
respective parties hereto:
The Borrower: Affiliated Managers Group
Xxx Xxxxxxxxxxxxx Xxxxx, 00xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxx Xxxxxx, Executive Vice President
Fax: (000) 000-0000
The Administrative
Agent: The Chase Manhattan Bank
One Chase Xxxxxxxxx Xxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
Fax: (000) 000-0000
PROVIDED that any notice, request or demand to or upon the Administrative Agent
or the Lenders pursuant to subsection 2.2, 3.2, 3.4, 4.1, 4.3 or 4.8 shall not
be effective until received.
11.3 NO WAIVER; CUMULATIVE REMEDIES. No failure to exercise
and no delay in exercising, on the part of the Administrative Agent or any
Lender, any right, remedy, power or privilege hereunder or under the other Loan
Documents shall operate as a waiver thereof;
61
67
nor shall any single or partial exercise of any right, remedy, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. The rights, remedies,
powers and privileges herein provided are cumulative and not exclusive of any
rights, remedies, powers and privileges provided by law.
11.4 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties made hereunder, in the other Loan Documents and
in any document, certificate or statement delivered pursuant hereto or in
connection herewith shall survive the execution and delivery of this Agreement
and the making of the Loans hereunder through the Termination Date.
11.5 PAYMENT OF EXPENSES AND TAXES. The Borrower agrees (a)
to pay or reimburse the Administrative Agent for all its out-of-pocket costs and
expenses incurred in connection with the development, preparation and execution
of, and any amendment, supplement or modification to, this Agreement and the
other Loan Documents and any other documents prepared in connection herewith or
therewith, and the consummation and administration of the transactions
contemplated hereby and thereby, including, without limitation, the reasonable
fees and disbursements of counsel to the Administrative Agent, (b) to pay or
reimburse each Lender and the Administrative Agent for all its costs and
expenses incurred in connection with the enforcement or preservation of any
rights under this Agreement, the other Loan Documents and any such other
documents during the continuance of an Event of Default, including, without
limitation, the fees and disbursements of counsel to each Lender and of counsel
to the Administrative Agent, (c) to pay, indemnify, and hold each Lender and the
Administrative Agent harmless from, any and all recording and filing fees and
any and all liabilities with respect to, or resulting from any delay in paying,
stamp, excise and other taxes other than Non-Excluded Taxes, if any, which may
be payable or determined to be payable in connection with the execution and
delivery of, or consummation or administration of any of the transactions
contemplated by, or any amendment, supplement or modification of, or any waiver
or consent under or in respect of, this Agreement, the other Loan Documents and
any such other documents, and (d) to pay, indemnify, and hold each Lender and
the Administrative Agent harmless from and against any and all other
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever with respect
to the execution, delivery, enforcement, performance and administration of this
Agreement, the other Loan Documents (all the foregoing in this clause (d),
collectively, the "indemnified liabilities"), PROVIDED, that the Borrower shall
have no obligation hereunder to the Administrative Agent or any Lender with
respect to indemnified liabilities arising from (i) the gross negligence, bad
faith or willful misconduct of the Administrative Agent or any such Lender or
(ii) legal proceedings commenced against the Administrative Agent or any such
Lender by any security holder or creditor thereof arising out of and based upon
rights afforded any such security holder or creditor solely in its capacity as
such. Any statement for reasonable expenses of counsel to the Administrative
Agent and the Lenders payable by the Borrower pursuant to this subsection 11.5
shall be sent to a Responsible Officer of the Borrower within six months of the
termination of the event giving
62
68
rise to such expenses. The agreements in this subsection shall survive repayment
of the Loans and all other amounts payable hereunder.
11.6 SUCCESSORS AND ASSIGNS; PARTICIPATIONS AND ASSIGNMENTS.
(a) This Agreement shall be binding upon and inure to the benefit of the
Borrower, the Lenders, the Administrative Agent and their respective successors
and assigns, except that the Borrower may not assign or transfer any of its
rights or obligations under this Agreement without the prior written consent of
each Lender.
(b) Any Lender may, in the ordinary course of its commercial
banking business and in accordance with applicable law, and with the consent of
the Borrower (which consent shall not be unreasonably withheld), at any time
sell to one or more banks or other entities ("PARTICIPANTS") participating
interests in any Loan owing to such Lender, any Commitment of such Lender or any
other interest of such Lender hereunder and under the other Loan Documents. In
the event of any such sale by a Lender of a participating interest to a
Participant, such Lender's obligations under this Agreement to the other parties
to this Agreement shall remain unchanged, such Lender shall remain solely
responsible for the performance thereof, such Lender shall remain the holder of
any such Loan for all purposes under this Agreement and the other Loan
Documents, and the Borrower and the Administrative Agent shall continue to deal
solely and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement and the other Loan Documents. The Borrower
agrees that if amounts outstanding under this Agreement are due or unpaid, or
shall have been declared or shall have become due and payable upon the
occurrence of an Event of Default, each Participant shall, to the maximum extent
permitted by applicable law, be deemed to have the right of setoff in respect of
its participating interest in amounts owing under this Agreement to the same
extent as if the amount of its participating interest were owing directly to it
as a Lender under this Agreement, PROVIDED that, in purchasing such
participating interest, such Participant shall be deemed to have agreed to share
with the Lenders the proceeds thereof as provided in subsection 11.7(a) as fully
as if it were a Lender hereunder. The Borrower also agrees that each Participant
shall be entitled to the benefits of subsections 4.10, 4.11, 4.12 with respect
to its participation in the Commitments and the Loans outstanding from time to
time as if it was a Lender; PROVIDED that, in the case of subsection 4.11, such
Participant shall have complied with the requirements of said subsection and
PROVIDED, FURTHER, that no Participant shall be entitled to receive any greater
amount pursuant to any such subsection than the transferor Lender would have
been entitled to receive in respect of the amount of the participation
transferred by such transferor Lender to such Participant had no such transfer
occurred.
(c) Any Lender may, in the ordinary course of its commercial
banking business and in accordance with applicable law, at any time and from
time to time assign to any Lender or any affiliate thereof or, with the consent
of each of the Administrative Agent and the Borrower (which in each case shall
not be unreasonably withheld), to an additional bank or financial institution
("an ASSIGNEE") all or any part of its rights and obligations under this
Agreement and the other Loan Documents pursuant to an Assignment and Acceptance,
substantially in the
63
69
form of Exhibit E, executed by such Assignee, such assigning Lender (and, in the
case of an Assignee that is not then a Lender or an affiliate thereof, by the
Administrative Agent) and delivered to the Administrative Agent for its
acceptance and recording in the Register, PROVIDED that, in the case of any such
assignment to an additional bank or financial institution, the sum of the
aggregate principal amount of the Loans and the aggregate amount of the unused
Commitments being assigned and, if such assignment is of less than all of the
rights and obligations of the assigning Lender, the sum of the aggregate
principal amount of the Loans and the aggregate amount of the unused Commitments
remaining with the assigning Lender are each not less than 10% of the aggregate
principal amount of the Loans and the aggregate amount of the unused Commitments
of all the Lenders then outstanding (or such lesser amount as may be agreed to
by the Borrower and the Administrative Agent). Upon such execution, delivery,
acceptance and recording, from and after the effective date determined pursuant
to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party
hereto and, to the extent provided in such Assignment and Acceptance, have the
rights and obligations of a Lender hereunder with a Commitment as set forth
therein, and (y) the assigning Lender thereunder shall, to the extent provided
in such Assignment and Acceptance, be released from its obligations under this
Agreement (and, in the case of an Assignment and Acceptance covering all or the
remaining portion of an assigning Lender's rights and obligations under this
Agreement, such assigning Lender shall cease to be a party hereto).
(d) The Administrative Agent, on behalf of the Borrower,
shall maintain at the address of the Administrative Agent referred to in
subsection 11.2 a copy of each Assignment and Acceptance delivered to it and a
register (the "REGISTER") for the recordation of the names and addresses of the
Lenders and the Commitments of, and principal amounts of the Loans owing to,
each Lender from time to time. The entries in the Register shall be conclusive,
in the absence of manifest error, and the Borrower, the Administrative Agent and
the Lenders may (and, in the case of any Loan or other obligation hereunder not
evidenced by a Note, shall) treat each Person whose name is recorded in the
Register as the owner of a Loan or other obligation hereunder as the owner
thereof for all purposes of this Agreement and the other Loan Documents,
notwithstanding any notice to the contrary. Any assignment of any Loan or other
obligation hereunder not evidenced by a Note shall be effective only upon
appropriate entries with respect thereto being made in the Register. The
Register shall be available for inspection by the Borrower or any Lender at any
reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance
executed by an assigning Lender and an Assignee (and, in the case of an Assignee
that is not then a Lender or an affiliate thereof, by the Administrative Agent
with the approval of the Borrower) together with payment by the Lenders parties
thereto to the Administrative Agent of a registration and processing fee of
$3,500, the Administrative Agent shall (i) promptly accept such Assignment and
Acceptance and (ii) on the effective date determined pursuant thereto record the
information contained therein in the Register and give notice of such acceptance
and recordation to the Lenders and the Borrower.
64
70
(f) The Borrower authorizes each Lender to disclose to any
Participant or Assignee (each, a "TRANSFEREE") and any prospective Transferee
approved by the Borrower, which approval shall not be unreasonably withheld,
subject to the provisions of subsection 11.15, any and all financial information
in such Lender's possession concerning the Borrower and its Affiliates which has
been delivered to such Lender by or on behalf of the Borrower pursuant to this
Agreement or which has been delivered to such Lender by or on behalf of the
Borrower in connection with such Lender's credit evaluation of the Borrower and
its Affiliates prior to becoming a party to this Agreement, PROVIDED, HOWEVER,
that prior to such disclosure each such prospective Transferee shall have
executed a confidentiality agreement substantially in the form of Exhibit F.
(g) For avoidance of doubt, the parties to this Agreement
acknowledge that the provisions of this subsection concerning assignments of
Loans and Notes relate only to absolute assignments and that such provisions do
not prohibit assignments creating security interests, including, without
limitation, any pledge or assignment by a Lender of any Loan or Note to any
Federal Reserve Bank in accordance with applicable law.
11.7 ADJUSTMENTS; SET-OFF. (a) If any Lender (a "BENEFITTED
LENDER") shall at any time receive any payment of all or part of its Loans, or
interest thereon, or receive any collateral in respect thereof (whether
voluntarily or involuntarily, by set-off, pursuant to events or proceedings of
the nature referred to in Section 9(f), or otherwise), in a greater proportion
than any such payment to or collateral received by any other Lender, if any, in
respect of such other Lender's Loans, or interest thereon, such benefitted
Lender shall purchase for cash from the other Lenders a participating interest
in such portion of each such other Lender's Loan, or shall provide such other
Lenders with the benefits of any such collateral, or the proceeds thereof, as
shall be necessary to cause such benefitted Lender to share the excess payment
or benefits of such collateral or proceeds ratably with each of the Lenders;
PROVIDED, HOWEVER, that if all or any portion of such excess payment or benefits
is thereafter recovered from such benefitted Lender, such purchase shall be
rescinded, and the purchase price and benefits returned, to the extent of such
recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders
provided by law, each Lender shall have the right, without prior notice to the
Borrower, any such notice being expressly waived by the Borrower to the extent
permitted by applicable law, upon any amount becoming due and payable by the
Borrower hereunder (whether at the stated maturity, by acceleration or
otherwise) to set-off and appropriate and apply against such amount any and all
deposits (general or special, time or demand, provisional or final), in any
currency, and any other credits, indebtedness or claims, in any currency, in
each case whether direct or indirect, absolute or contingent, matured or
unmatured, at any time held or owing by such Lender or any branch or agency
thereof to or for the credit or the account of the Borrower. Each Lender agrees
promptly to notify the Borrower and the Administrative Agent after any such
set-off and application made by such Lender, PROVIDED that the failure to give
such notice shall not affect the validity of such set-off and application.
65
71
11.8 COUNTERPARTS. This Agreement may be executed by one or
more of the parties to this Agreement on any number of separate counterparts
(including by facsimile transmission), and all of said counterparts taken
together shall be deemed to constitute one and the same instrument. A set of the
copies of this Agreement signed by all the parties shall be lodged with the
Borrower and the Administrative Agent.
11.9 SEVERABILITY. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
11.10 INTEGRATION. This Agreement and the other Loan Documents
represent the agreement of the Borrower, the Administrative Agent and the
Lenders with respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by the Administrative Agent or any
Lender relative to subject matter hereof not expressly set forth or referred to
herein or in the other Loan Documents.
11.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
11.12 SUBMISSION TO JURISDICTION; WAIVERS. The Borrower hereby
irrevocably and unconditionally:
(a) submits for itself and its property in any legal action
or proceeding relating to this Agreement and the other Loan Documents to
which it is a party, or for recognition and enforcement of any judgement
in respect thereof, to the non-exclusive general jurisdiction of the
Courts of the State of New York, the courts of the United States of
America for the Southern District of New York, and appellate courts from
any thereof;
(b) consents that any such action or proceeding may be
brought in such courts and waives any objection that it may now or
hereafter have to the venue of any such action or proceeding in any such
court or that such action or proceeding was brought in an inconvenient
court and agrees not to plead or claim the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to the Borrower at its address set forth in subsection 11.2 or
at such other address of which the Administrative Agent shall have been
notified pursuant thereto;
66
72
(d) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or shall
limit the right to xxx in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal action or proceeding
referred to in this subsection any special, exemplary, punitive or
consequential damages.
11.13 ACKNOWLEDGEMENTS. The Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the other Loan Documents;
(b) neither the Administrative Agent nor any Lender has any
fiduciary relationship with or duty to the Borrower arising out of or in
connection with this Agreement or any of the other Loan Documents, and
the relationship between Administrative Agent and Lenders, on one hand,
and the Borrower, on the other hand, in connection herewith or therewith
is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions contemplated
hereby among the Lenders or among the Borrower and the Lenders.
11.14 WAIVERS OF JURY TRIAL. TO THE EXTENT PERMITTED BY LAW,
THE BORROWER, THE ADMINISTRATIVE AGENT AND THE LENDERS HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING
TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
11.15 CONFIDENTIALITY. Each Lender agrees to keep confidential
any written or oral information (a) provided to it by or on behalf of the
Borrower or any of its Subsidiaries pursuant to or in connection with this
Agreement or (b) obtained by such Lender based on a review of the books and
records of the Borrower or any of its Subsidiaries; PROVIDED that nothing herein
shall prevent any Lender from disclosing any such information (i) to the
Administrative Agent or any other Lender, (ii) to any Transferee which agrees in
writing to comply with the provisions of this subsection, (iii) to its
employees, directors, agents, attorneys, accountants and other professional
advisors who are directly involved in the execution of the transactions
contemplated by this Agreement and have been informed of their obligations under
this subsection 11.15, (iv) upon the request or demand of any Governmental
Authority having jurisdiction over such Lender, (v) in response to any order of
any court or other Governmental Authority or as may otherwise be required
pursuant to any Requirement of Law (notice of which shall be provided promptly
to the Borrower), (vi) which has been publicly disclosed other than in breach of
this Agreement, or (vii) in connection with the exercise of any remedy
hereunder.
67
73
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
AFFILIATED MANAGERS GROUP, INC.
By:
----------------------------------------
Title:
THE CHASE MANHATTAN BANK, as
Administrative Agent and as a Lender
By:
-----------------------------------------
Title:
LENDERS
68
